Oral Argument: Recent Episodes
Joe Miller and Christian Turner
In this holiday spectacular, we talk about small claims. In particular, would a court for small copyright claims be a good or bad thing? You can probably guess what we each say. In exploring this, we consider the nature of dogs, hunters, and children.
Joe lowers the boom, and we start talking. In the 213th episode of this very serious podcast, we discuss: scams, flight simulators, flight, K2, Joe's blue cheese odyssey, olives, the nature of expertise, nihilism, and the adversary system. And other things as well.
We discuss the Supreme Court's (I know, I know) decision in Roman Catholic Diocese v. Cuomo (https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf).
Just Joe and Christian on the pandemic, new articles, and spring break. Achieving A Fair and Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts in the United States (https://law.yale.edu/sites/default/files/area/center/ghjp/documents/final_covid-19_letter_from_public_health_and_legal_experts.pdf) The President in discussion with pharma execs on a vaccine (https://twitter.com/owillis/status/1234607697540063234)
We are joined by our student, Justin Van Orsdol, who has co-authored a paper with Christian about a new approach to the gun violence crisis. Justin Van Orsdol's writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3096029) Christian Turner and Justin Van Orsdol, The Gun Subsidy (https://ssrn.com/abstract=3537278) Oral Argument 101: Tug of War (https://oralargument.org/101) Special Guest: Justin Van Orsdol.
We discuss a proposal by Sen. Hawley to abolish, more or less, the Federal Trade Commission, the agency that administers consumer protection and antitrust laws, and place its responsibilities in the Justice Department. Antitrust, the unitary executive, independent agencies, Joe's Competition Commission, and more. Josh Hawley, Overhauling the Federal Trade Commission (https://www.hawley.senate.gov/sites/default/files/2020-02/Hawley-FTC-Overhaul.pdf) Mike Masnick, William Barr's Move to Rid the DOJ of Independence Shows One of Many Reasons Josh Hawley's FTC Plan Is Dangerous (https://www.techdirt.com/articles/20200212/16015343912/william-barrs-move-to-rid-doj-independence-shows-one-many-reasons-josh-hawleys-ftc-plan-is-dangerous.shtml)
Sometimes in law, as in other areas of life, we think we know something, but the more we think about, the more we realize we don't know it at all. Legal scholars have focused on puzzles like this before, like why blackmail should be illegal. Deborah Hellman joins us to discuss her attempt to answer a question you might not have known you had: What is wrong with bribery, and what is bribery anyway? The difficulties here shed some light on recent events. Deborah Hellman's faculty profile and writing (https://www.law.virginia.edu/faculty/profile/dh9ev/2299809) Deborah Hellman, A Theory of Bribery (https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2828840) [Oral Argument 206: What Are We?][ep206] [ep206]: https://oralargument.org/206 Special Guest: Deborah Hellman.
Joe and Christian discuss Christian's latest paper, on the way we define and separate markets, including European football, campaign finance, surrogate motherhood, and water bottles in disaster zones. Christian Turner, The Segregation of Markets (SSRN) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3342629) (SocArXiv) (https://osf.io/preprints/socarxiv/5ehmy/)
Christian calls Joe out of the blue to celebrate our sixth anniversary and to talk about heroes.
We discuss new calls to integrate church and state. The conversation ranges over liberalism, religion, religious zeal, and, obviously, some nonsense. Micah Schwartzman and Jocelyn Wilson, The Unreasonableness of Catholic Integralism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3436376) Adrian Vermeule, Integration from Within (https://americanaffairsjournal.org/2018/02/integration-from-within/) Christina Deardurff, "The Depths of the Church Are Not to Be Disturbed": An interview with Adrian Vermeule (https://mirrorofjustice.blogs.com/files/vermeule-article.pdf)
On immaturity, defensiveness, art, the intellect, models, and the self. And mailbag on scholarship and practice, Title VII, and Star Trek. It's Joe's birthday.
We discuss dictionaries, up and down on maps, and excellence in seminar conversation. Joseph Miller, Suggestions for Law School Seminars (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3425608) Seminar Skills – Learning Collaboratively (https://sjcadmissionsblog.com/2019/07/22/seminar-skills-learning-collaboratively/)
Just Joe and Christian, lumbering into season 2, talking about tipping and fraud in the gig economy, bar exam fiascos, legal scholarship, and fireworks. Andy Newman, DoorDash Changes Tipping Model After Uproar From Customers (https://www.nytimes.com/2019/07/24/nyregion/doordash-tip-policy.html?action=click&module=inline&pgtype=Article) Donna Hershkowitz, The State Bar of California, Statement on July 2019 Bar Exam Release of General Topics (http://www.calbar.ca.gov/About-Us/News-Events/News-Releases/statement-on-july-2019-bar-exam-release-of-general-topics) Oral Argument 61: Minimum Competence (https://oralargument.org/61) (guest Derek Muller) The Weeds (https://www.vox.com/the-weeds), Vox's podcast for politics and policy, the episode Dysfunctional Federalism with David Schleicher is accessible within their player or, obv, in your podcast app
We kick off Season 2 with assorted nonsense before diving into our second SCOTUS round-up, which consists entirely of the Supreme Court's decision on the census citizenship question. Dep't of Commerce v. New York (https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf)
We discuss items from the mailbag and go ahead and conduct our annual, absurd Supreme Court round-up (fifty minutes in). James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3352745) Obriecht v. Splinter (https://scholar.google.com/scholar_case?case=15666046241258319811) Johari Canty, Florida Deputies Find Sign Warning Drivers About Upcoming Speed Trap (https://wsvn.com/news/local/florida-deputies-find-sign-warning-drivers-about-upcoming-speed-trap/) American Legion v. American Humanist Ass'n (https://www.supremecourt.gov/opinions/18pdf/17-1717_j426.pdf) Knick v. Township of Scott (https://www.supremecourt.gov/opinions/18pdf/17-647_m648.pdf)
How would you feel if you found out you were unwittingly the subject of an experiment testing two alternatives? You got A, and another group got B. Many people object to this. But what if neither A nor B was at all objectionable and in fact each is served up at many other places unilaterally and without reason for preferring one to the other? Why should we object to being randomly given A or B for the purpose of testing, when we would not object to having either uniformly and arbitrarily imposed? We are joined again by Michelle Meyer to discuss this problem, made famous recently by Facebook and other A/B testing entrepreneurs. Michelle Meyer’s web page (http://www.michellenmeyer.com), faculty profile (https://www.geisinger.edu/research/research-and-innovation/find-an-investigator/2018/04/04/13/27/michelle-meyer), and writing (http://www.michellenmeyer.com/writing.html) Michelle Meyer et al., Objecting to Experiments that Compare Two Unobjectionable Policies or Treatments (https://www.pnas.org/content/pnas/early/2019/05/08/1820701116.full.pdf) Oral Argument 72: The Guinea Pig Problem (https://oralargument.org/72) (guest Michelle Meyer) Special Guest: Michelle Meyer.
We talk about LARPing, emotions, meaning, exam writing, grading, happiness, and other things. Lawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success (https://ir.law.fsu.edu/articles/94/)
Is the common law efficient? Richard Posner, among many others, has argued that it is, perhaps even without judges ever themselves focusing on that goal. Daniel Sokol joins us to discuss how understanding law as a platform, like modular and open-source software platforms, helps to see how some areas of the law might indeed become more efficient over time while others might not. Daniel Sokol's faculty profile (https://www.law.ufl.edu/faculty/d-daniel-sokol) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362604) Daniel Sokol, Rethinking the Efficiency of the Common Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3328025) Special Guest: Daniel Sokol.
We dip back into the mailbag to discuss verdicts, unpublished opinions, "based off," canons and anti-canons, and more.
With Zahr Said and Jessica Silbey, we discuss new narrative forms, their setting, and their influence on law and legal education. How do the natures of podcasts, twitter, fake news, and deep fakes affect the way we experience culture together and how do they construct that culture and our legal culture? Zahr Said's faculty profile (https://www.law.uw.edu/directory/faculty/said-zahr-k) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1030166) Jessica Silbey's faculty profile (https://www.northeastern.edu/law/faculty/directory/silbey.html) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=380489) Zahr Said and Jessica Silbey, Narrative Topoi in the Digital Age (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293933) Ryan Calo, Digital Market Manipulation (https://digitalcommons.law.uw.edu/faculty-articles/25/) Daniel Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy (https://scholarship.law.gwu.edu/faculty_publications/924/) Special Guests: Jessica Silbey and Zahr Said.
Fast on the heels of her last appearance, Carissa Hessick joins us to talk about corpus linguistics, which means... well, we debate this, but, generally, the use of computer-based methods to draw inferences from large databases of texts. What is this enterprise? How can and should it be used to answer legal questions? What does it mean to mean something? These questions, thunder, sense, nonsense, and a continued delving into Joe's pscyhe all feature in this episode. Carissa Hessick’s faculty profile (http://www.law.unc.edu/faculty/directory/hessickcarissabyrne/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=445060) Carissa Byrne Hessick, Corpus Linguistics and the Criminal Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3031987) Lawrence Solum, Legal Theory Lexicon: Corpus Linguistics (https://lsolum.typepad.com/legaltheory/2017/10/legal-theory-lexicon-corpus-linguistics.html) James Phillips, Daniel Ortner, and Thomas Lee, Corpus Linguistics and Original Public Meaning: A New Tool to Make Originalism More Empirical (https://www.yalelawjournal.org/forum/corpus-linguistics-original-public-meaning) Special Guest: Carissa Hessick.
At long last, we discuss originalism with one of its foremost proponents, Lawrence Solum. In this conversation, we focus on Larry's recent effort to identify what constitutes originalism as a category of interpretive theories and what distinguishes it from other theories, including living constitutionalism. This episode's links: Larry Solum's faculty profile (https://www.law.georgetown.edu/faculty/lawrence-b-solum/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316) Legal Theory Blog (https://lsolum.typepad.com) (see also Larry's very helpful Legal Theory Lexicon (https://lsolum.typepad.com/legal_theory_lexicon/)) Lawrence Solum, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3324264) (As mentioned in this episode, this article is a great starting point for understanding the various theories and methods of originalism and non-originalism. It contains excellent references to the key literature, which we'd ordinarily include here in the show notes. But since it's so comprehensive, we'll just include this link.) David Plunkett, Which Concepts Should We Use?: Metalinguistic Negotiations and The Methodology of Philosophy (https://www.dartmouth.edu/~plunkett/metalinguistic-negotiations.pdf) Special Guest: Lawrence Solum.
After discussion of failing memory, mispronunciation of names, and legal scholarship, we turn to a very serious topic with our guest, Eric Kades. The looming threat of dynastic wealth in the United States has been much discussed since, and even before, the publication of Thomas Piketty's Capital in the Twenty-First Century. We discuss Piketty's now-famous inequality, r > g, how certain legal rules handled the building of perpetual dynasties, the attack on those rules during the historically unusual period during which many of us have grown up, and Eric's proposed tax to fend off some of the dangers. This episode's links: Eric Kade’s faculty profile (https://law.wm.edu/faculty/bios/fulltime/eakade.php) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=167429) Eric Kades, Of Piketty and Perpetuities (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3056497) Thomas Piketty, Capital in the Twenty-First Century (http://www.hup.harvard.edu/catalog.php?isbn=9780674979857) Special Guest: Eric Kades.
Just Joe and Christian talking about, inter alia, a paper about judicial writing and practice by the late Judge Wald. Live to tape and shipped without editing. Buyer beware! Patricia Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings (https://chicagounbound.uchicago.edu/uclrev/vol62/iss4/8/)
Kim Krawiec rejoins us to discuss "repugnant" transactions. One common target of this adjective is trade in human body parts. While on the one hand making more matching kidneys available saves lives and prevents large amounts of suffering, on the other hand revulsion and concerns about coercion and distributive fairness arise when kidneys are bought and paid for. In recent years, a number of innovative market designs have allowed strangers to exchange kidneys without engaging in impersonal, commodified market transactions. And now there have been several global examples of such exchanges, transferring not only kidneys but also the resources needed to perform transplants in poor countries. But are these alternative designs still "markets," and what exactly is our problem with markets in kidneys anyway? Kim Krawiec’s faculty profile (https://law.duke.edu/fac/krawiec/), writing (http://kimberlydkrawiec.org/publications/chronological/), and website (https://kimberlydkrawiec.org) Oral Argument 17: Flesh List (https://oralargument.org/17) (guest Kim Krawiec) Kimberly Krawiec, Kidneys Without Money (http://kimberlydkrawiec.org/repugnance-readings-for-the-new-year/) (a landing page for this article and responses by Glenn Cohen and Weyma Lübbe) Kieran Healy, Last Best Gifts (https://press.uchicago.edu/ucp/books/book/chicago/L/bo3752847.html) Kieran Healy and Kimberly Krawiec, Repugnance Management and Transactions in the Body (https://scholarship.law.duke.edu/faculty_scholarship/3736/) Philip Cook and Kimberly Krawiec, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don’t We Allow Kidney Donors to Be Paid for Saving Lives? (https://scholarship.law.duke.edu/lcp/vol81/iss3/2/) Philip Cook and Kimberly Krawiec, A Primer on Kidney Transplantation: Anatomy of the Shortage (https://scholarship.law.duke.edu/lcp/vol77/iss3/2/) Special Guest: Kimberly Krawiec.
If you were charged with a crime, would you rather it be one written down by a legislature and codified in the tomes of a state's laws or one marked out by the decisions of judges over time? You're hardly alone if you chose the first option, and it is in fact the conventional wisdom that we have rightfully abandoned and prohibited "common law crimes." Not so fast, says our guest, Carissa Hessick. Our system of criminal law is still host to a good deal of common law, in the interstices of statutory text, through explicit incorporation, and sometimes from thin air. More importantly, if what you care about is the rule of law, then our system of code, in which prosecutors exercise less visible and less precedent-governed authority than any common law judge, hardly fits the bill. Carissa Hessick’s faculty profile (http://www.law.unc.edu/faculty/directory/hessickcarissabyrne/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=445060) Carissa Hessick, The Myth of Common Law Crimes (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139831) United States v. Hudson and Goodwin (https://scholar.google.com/scholar_case?case=10808232938953194239) Bordenkircher v. Hayes (https://scholar.google.com/scholar_case?case=3433599856216279138) Yates v. United States (https://scholar.google.com/scholar_case?case=4276838743116849486) Bond v. United States (https://scholar.google.com/scholar_case?case=14369486041709640908) Carissa Hessick, Vagueness Principles (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2837743) Bob Ratterman, Judicial Candidate Expresses Frustration with the Plea Bargain Process (https://www.journal-news.com/news/local/judicial-candidate-expresses-frustration-with-the-plea-bargain-process/DEn1cDLn83Hz2m5GLIiJjJ/) James Burnham, Why Don’t Courts Dismiss Indictments? A Simple Suggestion For Making Federal Criminal Law A Little Less Lawless (http://www.greenbag.org/v18n4/v18n4_articles_burnham.pdf) Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3070478) Special Guest: Carissa Hessick.
Jocelyn Simonson returns to the show to wake us up to the many public interests on both sides (and no sides and all sides) in criminal cases. We discuss whether prosecutors are synonymous with "the People" and how a broader conception of "the People's" interests in criminal adjudication might suggest more robust public participation in the criminal process. Jocelyn Simonson’s faculty profile (https://www.brooklaw.edu/faculty/directory/facultymember/biography?id=jocelyn.simonson) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=700555) Jocelyn Simonson, The Place of "the People" in Criminal Procedure (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3273565) Oral Argument 95: Own the Block (https://oralargument.org/95) (guest Jocelyn Simonson) Serial Season 3 (https://serialpodcast.org) Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (https://press.princeton.edu/titles/10731.html) Unsigned Note, The Paradox of "Progressive Prosecution" (https://harvardlawreview.org/2018/12/the-paradox-of-progressive-prosecution/) Barry Friedman and Maria Ponomarenko, Democratic Policing (https://www.nyulawreview.org/issues/volume-90-number-6/democratic-policing/) Laura Appleman, Defending the Jury (https://www.amazon.com/Defending-Jury-Laura-I-Appleman/dp/1107650933) Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World (https://brooklynworks.brooklaw.edu/faculty/298/) Alexandra Natapoff, The Penal Pyramid (https://books.google.com/books?id=BI1WDwAAQBAJ&pg=PA71&lpg=PA71) Carol Steiker, Tempering or Tampering? Mercy and the Administration of Criminal Justice (https://books.google.com/books?id=KOAoQiRFo70C&pg=PA16&lpg=PA16#v=onepage&q&f=false) Special Guest: Jocelyn Simonson.
Exactly five years after our first show, we record a conversation on the ephemeral or perduring nature of podcasts and blogs, dockless scooters and local regulation, and viewer mail.
Brexit, China, international trade, security, distribution, resentment, madness, and coffee with Tim Meyer. Tim Meyer's faculty profile (http://law.vanderbilt.edu/bio/timothy-meyer) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=440142) Oral Argument 105: Bismarck’s Raw Material (https://oralargument.org/105) (guest Tim Meyer) Oral Argument 2: Bust a Deal, Face the Wheel (https://oralargument.org/2) (guest Tim Meyer) Timothy Meyer and Ganesh Sitaraman, Trade and the Separation of Powers (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3136086) Nicolas Lamp, How Should We Think about the Winners and Losers from Globalization? Three Narratives and Their Implications for the Redesign of International Economic Agreements (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3290590) Special Guest: Tim Meyer.
Here's your Thanksgiving Holiday episode, perfect for travel and your other holiday needs. If you listen only for law-related content, you'll probably want to skip to 01:17:16, where we somewhat casually discuss the controversy over whether the supposed Acting Attorney General was properly appointed. But we discuss many mailbag-related topics: the California fires and climate change (00:25), politeness and over-decorousness (8:53), how we imagine the mailbag and the miracles of pre-computer-age physical organization (11:06), how to find a good coffeeshop and the origins of "heyday" (22:15), our supposed bad taste in movies and our regard for certain consumer electronics (38:47), caselaw access and textbooks (55:44), seekers (59:44), markdown and word processing and the inevitable demise of Oral Argument (01:03:19), a discussion of the pretending Acting Attorney General and meltdowns and trainwrecks (01:17:16), podcast recommendations (01:33:30). Mary Beard's Ultimate Rome (https://www.bbc.co.uk/programmes/b0797yqk) About Michael Mann (https://en.wikipedia.org/wiki/Michael_Mann) About The Story of Star Wars LP (https://en.wikipedia.org/wiki/The_Story_of_Star_Wars) Travis Bostick, Jóhann Jóhannsson, Mother!, and Sound Over Score (http://blogs.iac.gatech.edu/film2018/2018/02/12/johann-johannsson-mother-and-sound-over-score/) Caselaw Access Project (https://case.law); H2O (https://h2o.law.harvard.edu) About Markdown (https://en.wikipedia.org/wiki/Markdown) Oral Argument 11: Big Red Diesel (https://oralargument.org/11), on Markdown and word processors Ulysses (https://ulysses.app) and Byword (https://bywordapp.com) Bat Kid is cancer free (https://twitter.com/CBSEveningNews/status/1062860135662530560) Jed Shugerman, Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal (https://shugerblog.com/2018/11/09/whitakers-appointment-as-acting-attorney-general-is-statutorily-illegal/); Stephen Vladeck, Whitaker May Be a Bad Choice, but He’s a Legal One (https://www.nytimes.com/2018/11/09/opinion/trump-attorney-general-constitutional.html); Walter Dellinger and Marty Lederman, Initial Reactions to OLC’s Opinion on the Whitaker Designation as “Acting” Attorney General (https://www.justsecurity.org/61483/initial-reactions-olc-opinion-whitaker-designation-acting-attorney-general/) Podcasts: Bag Man (https://www.msnbc.com/bagman), Slow Burn (https://slate.com/slow-burn), Serial (https://serialpodcast.org) (and Oral Argument 44: Serial (https://oralargument.org/44)), Feeding Us (http://feedingus.libsyn.com), Ipse Dixit (https://shows.pippa.io/ipse-dixit)
Episode 183: West Coast Model (guest Chris Elmendorf) Why is housing so expensive in major West Coast and northeastern cities? Not just more than you might want to pay, but, often, prohibitively expensive with little sign of new supply in areas people want to live. Chris Elmendorf joins us to explain this problem and the limited effectiveness of two types of solutions, the Northeastern and West Coast models. Drawing on the intergovernmental approach of the Voting Rights Act, Chris argues that a strong state role in reviewing the regulatory activities of local governments, if done in the right way, could be the way forward. And it points to a dramatic rethinking of how land use law should be made and what problems it should try to solve. This show’s links: Chris Elmendorf's faculty profile (https://law.ucdavis.edu/faculty/elmendorf/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345940) Christopher Elmendorf, Beyond the Double Veto: Land Use Plans As Preemptive Intergovernmental Contracts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3256857) William Fischel, The Homevoter Hypothesis (http://www.hup.harvard.edu/catalog.php?isbn=9780674015951) Roderick Hills, Jr. and David Schleicher, Planning an Affordable City (https://ilr.law.uiowa.edu/print/volume-101-issue-1/planning-an-affordable-city/) Robert Ellickson, Suburban Growth Controls: An Economic and Legal Analysis (https://digitalcommons.law.yale.edu/ylj/vol86/iss3/1/) About Senate Bill 827 (https://en.wikipedia.org/wiki/California_Senate_Bill_827) Text of Senate Bill 828 (https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB828) Special Guest: Chris Elmendorf.
The publication of legal scholarship is, compared with that in other academic disciplines, is, well, weird. Almost all legal journals are edited by students, and authors submit to many journals at once. We talk with Scott Dodson about his paper with law student and journal editor Jacob Hirsch. They elaborate a model code of conduct that could easily be implemented and would prevent some of the system's worst pathologies and bad behavior. We also have a little "post-roll." This show’s links: Scott Dodson's faculty profile (https://www.uchastings.edu/people/scott-dodson/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=670529) Scott Dodson and Jacob Hirsch, A Model Code of Conduct for Student-Edited Law-Journal Submissions (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3048413) Oral Argument 96: Students as Means (https://oralargument.org/96) Special Guest: Scott Dodson.
We talk with our colleague Sandy Mayson about the use of algorithms in criminal law decisionmaking - and especially their troubling and difficult to disentangle incorporation of race. From bail to sentencing to policing effort to hiring and admitting to college, we subject different social groups to different risks of erroneous treatment, predicting, for example, that an individual is likely to commit another crime when in fact he or she will not reoffend. What should we do? Reject the use of algorithms - is that even possible? Attempt to "correct" the algorithms? Sandy teaches us about the difficulty of achieving algorithmic fairness. This show’s links: Sandy Mayson's faculty profile (http://www.law.uga.edu/profile/sandra-g-mayson) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=714728) Sandra Mayson, Bias In, Bias Out (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3257004) Malcolm Feeley and Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications (https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1717&context=facpubs) Robert Martinson, What Works? Questions and Answers about Prison Reform (https://www.pbpp.pa.gov/research_statistics/Documents/Martinson-What%20Works%201974.pdf) Adam Kolber, Punishment and Moral Risk (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2896948) Douglas Husak, Kinds of Punishment (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2979458); Douglas Husak, What Do Criminals Deserve? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2788152) Special Guest: Sandy Mayson.
Just Joe and Christian on: listener feedback (01:09), the Supreme Court confirmation crisis and constitutional structure (round one) (08:00), more feedback (17:16), reading glasses (36:10), Apple and Daring Fireball and caring (41:43), peak iPhone (52:34), and the current state of the Kavanaugh nomination, partisanship, and Supreme Court nominations generally (01:01:31).
Joe becomes the guest guest and Mike Madison the guest host, as we talk about Joe's new research into the web of law and what citations tell us about what law means. As one might expect for a show which is ostensibly about legal theory but actually, as all good argunauts know, an extended meditation on Being Joe, this is a very special episode of Oral Argument. This show’s links: Joe Miller's faculty profile (http://www.law.uga.edu/profile/joseph-s-miller) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=104702) Mike Madison’s website (http://madisonian.net/home/), writing (http://madisonian.net/home/?page_id=85), and blog (http://madisonian.net) Joseph Miller, Law's Semantic Self-Portrait: Discerning Doctrine with Co-Citation Networks and Keywords (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3212131) Joseph Miller, Charting Supreme Court Patent Law, Near and Far (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3125510); Joseph Miller, Which Supreme Court Cases Influenced Recent Supreme Court IP Decisions? A Citation Study (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3012262) Charles Barzun, Three Forms of Legal Pragmatism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3178155) Andrew Green and Albert Yoon, Triaging the Law: Developing the Common Law on the Supreme Court of India (https://onlinelibrary.wiley.com/doi/full/10.1111/jels.12161) Frank Pasquale, A Rule of Persons, Not Machines: The Limits of Legal Automation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3135549) James Scott, Seeing Like a State (https://books.google.com/books?id=PqcPCgsr2u0C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false) Special Guest: Mike Madison.
This week, it's the latest edition of "Things Haven't Always Been Like This". Farah Peterson teaches us about the judges of the early 1800s and their now-strange-seeming institutional world in which judging and legislating were less distinct and more collaborative. This show’s links: Farah Peterson’s faculty profile (https://www.law.virginia.edu/faculty/profile/fp9r/2708426) Farah Peterson, Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201036) Dark Sky (https://www.hydratext.com/blog/2012/6/5/dark-sky.html) (blog post) Siddhartha Mukherjee, The Emperor of All Maladies: A Biography of Cancer (https://www.amazon.com/Emperor-All-Maladies-Biography-Cancer/dp/1439170916) Oral Argument 168: Galaxy-Sized Diamond (http://oralargument.org/168) (with Maggie McKinley on petitioning in Congress) Richard Verdon, A Large Meteor (https://twitter.com/kjhealy/status/1032589101877395462) Guido Calabresi, A Common Law for the Age of Statutes (https://books.google.com/books/about/A_Common_Law_for_the_Age_of_Statutes.html?id=KSy5QpdRMNsC) Special Guest: Farah Peterson.
It's our annual Supreme Court term roundup, with special guest Ian Samuel. We discuss, natch, one case, Carpenter v. United States, which concerns the need for a warrant to get records from cell phone companies concerning the location of your phone. But there's much more, including: hard drive upgrades, the sum total of human writing, audio vs. text for messaging, emojis, AI and grunts, Supreme Court-packing / balancing / restructuring (16:37), what rules of procedure an enlarged Court should set for itself and what rules should be imposed on it (29:00), podcast lengths and listening habits (51:04), Carpenter v. United States(01:02:06), Batman movies, and Hold-Up. This show’s links: First Mondays (http://www.firstmondays.fm) Ian Samuel’s writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=936551) Ian Samuel, The New Writs of Assistance (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3075587) Snopes, Did Facebook Shut Down an AI Experiment Because Chatbots Developed Their Own Language? (https://www.snopes.com/fact-check/facebook-ai-developed-own-language/) (no, but interesting) Oral Argument 134: Crossover (http://oralargument.org/134) Christian Turner, Amendment XXVIII: A First Draft (https://www.hydratext.com/blog/2018/7/12/amendment-xxviii) Ian Ayres and John Witt, Democrats Need a Plan B for the Supreme Court. Here’s One Option. (https://www.washingtonpost.com/opinions/democrats-need-a-plan-b-for-the-supreme-court-heres-one-option/2018/07/27/4c77fd4e-91a6-11e8-b769-e3fff17f0689_story.html) Oral Argument 37: Hammer Blow (http://oralargument.org/37) (with Michael Dorf); Oral Argument 38: You're Going to Hate this Answer_ (http://oralargument.org/38) (with Steve Vladeck); Christian Turner, Bound by Federal Law (http://www.hydratext.com/blog/2014/10/29/bound-by-federal-law) (including links to posts by Michael and Steve on the issue of state courts' not being bound by federal circuit courts) Carpenter v. United States (https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf) Radiolab, Eye in the Sky (https://www.wnycstudios.org/story/update-eye-sky/) Ian Samuel, Warrantless Location Tracking (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1092293) Lucas v. South Carolina Coastal Council (https://scholar.google.com/scholar_case?case=659168721517750079) Florida v. Jardines (https://scholar.google.com/scholar_case?case=2570635442757547915) Justice Souter’s discussion of Plessy and the role of history in judging (http://www.c-span.org/video/?284498-2/america-courts) (watch from minute one until about minute fourteen) and his Harvard Commencement speech (http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/) on Plessy Hold Up! (http://www.hydratext.com/blog/2015/7/24/hold-up) Special Guest: Ian Samuel.
A full hour of pre-roll before our extended conversation (in the next episode) with Ian Samuel. Opening topics: Words, Joe's new paper, phones and their spam and locations. We argue about how to have an argument. Then we stumble into a psychological typology of judginess and prescriptivism. The heartland of the episode concerns the self, law, death, being and non-being, Joe's youthful fear of blindness, the external and internal point of view, the reality of firehouses, and law as a social practice for reaching acceptable social conclusions vs. law as a queryable thing. (Other potential show titles: Pure Pre-Roll, The Jerk Box, and The Jailor.) This show’s links: About "antepenultimate" (https://en.wiktionary.org/wiki/antepenultimate) (including links to "propreantepenultimate") About Battle Royale games (https://en.wikipedia.org/wiki/Battle_royale_game) Tim Dowling, Order Force: The Old Grammar Rule We All Obey Without Realising (https://www.theguardian.com/commentisfree/2016/sep/13/sentence-order-adjectives-rule-elements-of-eloquence-dictionary) Joe Miller, Law's Semantic Self-Portrait: Discerning Doctrine with Co-Citation Networks and Keywords (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3212131) Carpenter v. United States (https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf) Anil Seth, The Real Problem (https://aeon.co/essays/the-hard-problem-of-consciousness-is-a-distraction-from-the-real-one) (on the problem of consciousness) Philip Bobbitt, Constitutional Fate: Theory of the Constitution (https://books.google.com/books?id=qVrjzOHlKsEC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false),
We're joined by Paul Gowder to discuss the rule of law, private power, and technology. We start, after important discussion of fishing bycatch and speech patterns of the western United States, with Paul's more general thoughts on the rule of law, oligopolies, and equality. Conversation then focuses on the connection between substantive politics and rule of law and principles and then on the role of technology in facilitating collective action, including through Paul's Dr. StrangeContract and a new podcast idea for Paul's fights with customer service at large corporations and a prognostication of a future of AI retention specialists vs. CancelBots. This show’s links: Paul Gowder's faculty profile (https://law.uiowa.edu/paul-gowder) and website (http://paul-gowder.com), which includes links to his writing Paul Gowder, The Rule of Law in the Real World (http://rulelaw.net) Paul Gowder, Transformative Legal Technology and the Rule of Law (https://utpjournals.press/doi/abs/10.3138/utlj.2017-0047) About bycatch (https://en.wikipedia.org/wiki/Bycatch) Nathan Masters, The 5, the 101, the 405: Why Southern Californians Love Saying "the" Before Freeway Numbers (https://www.kcet.org/shows/lost-la/the-5-the-101-the-405-why-southern-californians-love-saying-the-before-freeway-numbers) Mignon Fogarty, Spendy (https://www.quickanddirtytips.com/education/grammar/spendy) Roadwork (http://5by5.tv/roadwork) AT&T Mobility v. Concepcion (https://scholar.google.com/scholar_case?case=17088816341526709934) Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (https://press.princeton.edu/titles/9837.html); see also Margaret Jane Radin, Boilerplate: A Threat to the Rule of Law? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2340005) F.A. Hayek, Law, Legislation and Liberty: Vol.1 (https://books.google.com/books/about/Law_Legislation_and_Liberty_Volume_1.html?id=4TjL9Ox1ntoC) Elizabeth Anderson, What Is the Point of Equality? (https://www.jstor.org/stable/10.1086/233897?seq=1#page_scan_tab_contents) Pericles's Funeral Oration (https://en.wikisource.org/wiki/History_of_the_Peloponnesian_War/Book_2#Pericles_Funeral_Oration) Oral Argument 133: Too Many Darn Radio Buttons (http://oralargument.org/133) (guest Jim Gibson) Frank Pasquale, Is Eviction-as-a-Service the Hottest New #LegalTech Trend? (https://concurringopinions.com/archives/2016/02/is-eviction-as-a-service-the-hottest-new-legaltech-startup.html) Ron Amadeo, Talking to Google Duplex: Google’s Human-Like Phone AI Feels Revolutionary (https://arstechnica.com/gadgets/2018/06/google-duplex-is-calling-we-talk-to-the-revolutionary-but-limited-phone-ai/) Special Guest: Paul Gowder.
Just Joe and Christian on a double-album of an episode. Lots of nonsense and a smattering of sense, including: notaries public, international sport and boycotts and drugs, bears and snakes, the Deep South and weather, these days and conversation, a tiny, incomplete dip into the mailbag, the pronunciation of Argunauts, what we should do with our lives, law and neutrality, law as a substitute for war, 2 + 2 = 5 and right and wrong, hard and easy problems, freedom reasoning and the New Lochner, court packing, changing the constitution of the Supreme Court, religious tests for office and the nature of convictions about convictions. This show’s links: All about notaries public (https://en.wikipedia.org/wiki/Notary_public) Rebecca R. Ruiz and Michael Schwirtz, Russian Insider Says State-Run Doping Fueled Olympic Gold (https://www.nytimes.com/2016/05/13/sports/russia-doping-sochi-olympics-2014.html); the "McLaren Report" on Russian doping in Sochi (https://www.wada-ama.org/sites/default/files/resources/files/20160718_ip_report_newfinal.pdf) Stephen Herrero, Bear Attacks: Their Causes and Avoidance (https://books.google.com/books/about/Bear_Attacks.html?id=dqRGDwAAQBAJ&printsec=frontcover&source=kp_read_button#v=onepage&q&f=false) Ella Morton, The Snake Catchers Who Handle Australia’s Most Venomous Home Invaders (https://www.atlasobscura.com/articles/the-snake-catchers-who-handle-australias-most-venomous-home-invaders) About the "Deep South" (https://en.wikipedia.org/wiki/Deep_South) Katie Herzog, How Air-Conditioning Made America — and How It Could Break Us All (https://grist.org/food/how-air-conditioning-made-america-and-how-it-could-break-us-all/) Christian Turner, The Failures of Freedom (https://www.hydratext.com/blog/2012/2/4/the-failures-of-freedom.html) Oral Argument 134: Crossover (http://oralargument.org/134) (guests Dan Epps and Ian Samuel)
The Constitution requires the President to "take Care that the Laws be faithfully executed." Phrases like "faithful execution" are hardly unique to the constitutional setting. Rather, they have long been signals of both public and private relationships of trust and confidence, relationships that give rise to "fiduciary duties" in law. Ethan Leib and Jed Shugerman argue that the President has fiduciary duties and that these constrain his or her power to pardon and otherwise to act. This show’s links: Ethan Leib’s faculty profile (https://www.fordham.edu/info/23159/ethan_j_leib) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=344006) Jed Shugerman’s faculty profile (https://www.fordham.edu/info/23180/jed_shugerman), academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=625422), and blog (https://shugerblog.com) Ethan Leib and Jed Shugerman, Fiduciary Constitutionalism and ‘Faithful Execution’: Two Legal Conclusions (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3177968) Gary Lawson and Guy Seidman, "A Great Power of Attorney:" Understanding the Fiduciary Constitution (https://www.jstor.org/stable/j.ctt1nxqpnj) Eric Muller, Even More on Self-Pardons (http://www.thefacultylounge.org/2018/06/more-on-self-pardons.html) (containing links to Eric's original post and to a critique by Michael McConnell) Special Guests: Ethan Leib and Jed Shugerman.
If we were starting from scratch, as our guest Aziz Huq puts it, how should our constitution deal with criminality by high government officials? We talk about the constitutional designer's perspective, the criminalization of politics, and the politicization of the rule of law. This show’s links: Aziz Huq’s faculty profile (https://www.law.uchicago.edu/faculty/huq) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1266817) Aziz Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3185835) Thomas Ginsburg, Zachary Elkins, and James Melton, The Lifespan of Written Constitutions (https://www.law.uchicago.edu/news/lifespan-written-constitutions); Tom Ginsburg and James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2432520); Aziz Huq, The Function of Article V (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2406089) Aziz Huq, Hippocratic Constitutional Design (https://books.google.com/books?id=pg3PDAAAQBAJ&lpg=PA64&pg=PA39#v=onepage&q&f=false) in Assessing Constitutional Performance (https://books.google.com/books?id=pg3PDAAAQBAJ) Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (http://press.uchicago.edu/ucp/books/book/chicago/H/bo28381225.html); Aziz Huq and Tom Ginsburg, How to Lose a Constitutional Democracy (https://www.uclalawreview.org/lose-constitutional-democracy/) (see also the version of these ideas in Tom and Aziz's article for Vox (https://www.vox.com/the-big-idea/2017/2/21/14664568/lose-constitutional-democracy-autocracy-trump-authoritarian)) The Comparative Constitutions Project (http://comparativeconstitutionsproject.org) Special Guest: Aziz Huq.
Steve Vladeck rejoins us on ... lots of things. Christian returns from a conference abroad, french fries, standing, Iceland, patents and trial by battle, Trump, pronunciation in the Supreme Court and in various American cities, thunder. And then, (at 26:41 if you want to skip to the more serious part) a Dalmazzi update and general speculation about the authorship of pending cases and what's going on in the building. Will the big cases this term - travel ban, redistricting - fizzle like Masterpiece? Are there lessons or opportunities for reform of the Court's jurisdiction, procedures, and politics (46:21)? Then we discuss the new DOJ guidance on asylum, released while we were recording, and the immigration and general political crisis we now face (1:10:42). This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/stephen-i-vladeck) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362455) The National Security Law Podcast (https://www.nationalsecuritylawpodcast.com/) Special Guest: Steve Vladeck.
We talk with Charles Barzun about what it means to be a legal pragmatist. But first we start with the ending and then talk John Hodgman, the F words (Framers and Founders), the old 2x debate, and finally (at 13:31) about legal pragmatism and its many senses. We connect the topic to interpretation, ethics, the age of our legal asteroid, families, infidelity, rupture, continuity, Justice Souter, quietism agonistes, and more. This show’s links: Charles Barzun’s faculty profile (https://content.law.virginia.edu/faculty/profile/clb6x/1144315) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=546584) Charles Barzun, Three Forms of Legal Pragmatism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3178155) About Shane Carruth (https://en.wikipedia.org/wiki/Shane_Carruth), director of Primer and Upstream Color Judge John Hodgman (https://www.johnhodgman.com/JJHO) and John Hodgman, Vacationland (https://www.amazon.com/Vacationland-True-Stories-Painful-Beaches/dp/B074F3CWXZ/) Brian Tamanaha, A Realistic Theory of Law (https://www.amazon.com/Social-Legal-Theory-Modern-Transformation/dp/1316638510) Charles Barzun, Inside/Out: Beyond the Internal/External Distinction in Legal Scholarship (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2507260) Guy Kahane, Evolutionary Debunking Arguments (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3175808/) Charles Barzun, Justice Souter’s Common Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3035402) Oral Argument 146: Somehow in the Middle (http://oralargument.org/146) (with Charles discussing Justice Souter) Special Guest: Charles Barzun.
Back with a casual conversation about exams, faculties and their politics, and other random things. This show’s links: None.
Do you believe that once upon a time, before the rise of the administrative state, our legislature mainly legislated, our executive just carried out laws, and judges resolved individual disputes? Prepare to have your mind blown, as Maggie McKinley explains the central and evolving role that individual petitions for redress before Congress played from before the dawn of the Republic until the 1940s. She argues that our participation in government rather than formal, institutional separation has been the historical guarantor of democratic legitimacy. This show’s links: Maggie McKinley's faculty profile (https://www.law.upenn.edu/cf/faculty/mmckinle/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1646988) Maggie McKinley, Petitioning and the Making of the Administrative State (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3150671) Maggie McKinley, Lobbying and the Petition Clause (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2762012) Sonja West, First Amendment Neighbors (http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=2035&context=fac_artchop) Oral Argument 1: Send Joe to Prison (http://oralargument.org/1) (guest Sonja West) Special Guest: Maggie McKinley.
A spur of the moment episode in which we discuss streaming music, public opinion, interpretation and precedent, war and peace, the legality of airstrikes, and the survival of our species. This show’s links: None!
Do judges make law or find and apply it? Or both? Long ago, the realists seemingly won the argument that judging inevitably involves making law, not just identifying it. We talk with Stephen Sachs, who argues for the rehabilitation of the possibility that judges acting in good faith can indeed find the law. Will Stephen and Joe clash over what this means for Erie? You'll just have to listen to find out. This show’s links: Stephen Sachs' faculty profile (https://law.duke.edu/fac/sachs/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=532296) Stephen Sachs, Finding Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064443) Erie Railroad Co. v. Tompkins (https://scholar.google.com/scholar_case?case=4671607337309792720) Yes, I said "statistics," but I know it's Herbert Spencer, Social Statics (https://en.wikipedia.org/wiki/Social_Statics) Felix Cohen, Transcendental Nonsense and the Functional Approach (http://www.jstor.org/stable/1116300?seq=1#page_scan_tab_contents) Oral Argument 28: A Wonderfule Catastrophe (http://oralargument.org/28) (the one on Erie) Special Guest: Stephen Sachs.
Late at night, mics dragged up by the fire, talking mailbag items on conversation, Banach spaces, mental models, the Facebook dumpster fire, and Christian's weird old tricks for managing your online world. Finally, Mr. Rogers and being better. This show’s links: Larry Alexander, Constrained by Precedent (http://heinonline.org/HOL/LandingPage?handle=hein.journals/scal63÷=10&id=&page=) Scott Hershovitz, Integrity and Stare Decisis (https://books.google.com/books?id=O3FCAgAAQBAJ&lpg=PP1&dq=Exploring%20Law%27s%20EmpireThe%20Jurisprudence%20of%20Ronald%20Dworkin%24%20Exploring%20Law%27s%20Empire%3A%20The%20Jurisprudence%20of%20Ronald%20Dworkin&pg=PR16#v=onepage&q&f=false) Aaron Glantz and Emmanuel Martinez, For People of Color, Banks Are Shutting the Door to Homeownership (https://www.revealnews.org/article/for-people-of-color-banks-are-shutting-the-door-to-homeownership/) Zhigang Wei, Hugh McDonald, and Christine Coumarelos, Fines: Are Disadvantaged People at a Disadvantage? (http://www.lawfoundation.net.au/ljf/app/&id=D5D375991CE8E1B68525823A000641F4) Banach spaces (https://en.wikipedia.org/wiki/Banach_space) Christian Turner, Models of Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2835112) Lawerence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma (https://scholarship.law.georgetown.edu/facpub/1957/) Robert Cover, Violence and the Word (http://digitalcommons.law.yale.edu/fss_papers/2708/) Ben Thompson, The Facebook Brand (https://stratechery.com/2018/the-facebook-brand/) Will Oremus, The Real Scandal Isn’t What Cambridge Analytica Did (https://slate.com/technology/2018/03/the-real-scandal-isnt-cambridge-analytica-its-facebooks-whole-business-model.html) Oral Argument 72: The Guinea Pig Problem (http://oralargument.org/72) (guest Michelle Meyer) Matthew Yglesias, The Case Against Facebook (https://www.vox.com/policy-and-politics/2018/3/21/17144748/case-against-facebook) Nicholas Carlson, Well, These New Zuckerberg IMs Won't Help Facebook's Privacy Problems (http://www.businessinsider.com/well-these-new-zuckerberg-ims-wont-help-facebooks-privacy-problems-2010-5) Oral Argument 58: Obscurity Settings (http://oralargument.org/58) (guest Woody Hartzog) The trailer for Won't You Be My Neighbor? (https://kottke.org/18/03/the-trailer-for-wont-you-be-my-neighbor)
What is the legal precedent following a decision of the Supreme Court that lacks a majority opinion? For a few decades, the meta-rule has been that such as case stands for the position of those justices "who concurred in the judgments on the narrowest grounds." Or has it? And could it? Richard Re joins us to discuss the problems of the Marks rule, the meaning of precedent, and ultimately the nature of our law. This problem will be confronted in the Supreme Court in the coming weeks. This show’s links: Richard Re’s faculty profile (https://www.law.ucla.edu/faculty/faculty-profiles/richard-m-re/) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=974617) Re's Judicata (https://richardresjudicata.wordpress.com) Richard Re, Beyond the Marks Rule (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090620) Adam Steinman, Non-Majority Opinions and Biconditional Rules (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3123807) Marks v. United States (https://scholar.google.com/scholar_case?case=12064198172779556411) SCOTUSblog page for Hughes v. United States (http://www.scotusblog.com/case-files/cases/hughes-v-united-states/) Richard's amicus brief in Hughes (https://www.supremecourt.gov/DocketPDF/17/17-155/33360/20180126134313770_17-155%20Re%20Amicus%20Brief.pdf) Aro Mfg. Co. v. Convertible Top Replacement Co.: the 1961 decision (https://scholar.google.com/scholar_case?case=14679629603309035961) and the 1964 decision (https://scholar.google.com/scholar_case?case=2231855974886805443) Justice Lewis Powell's papers on Marks (http://law2.wlu.edu/deptimages/powell%20archives/75-708_Marks_US.pdf) from the The Lewis Powell Supreme Court Case Files (http://law2.wlu.edu/powellarchives/page.asp?pageid=1279) at Washington and Lee University School of Law Special Guest: Richard Re.
We dive in to the mailbag and one other topic, discussing: nonsense, statutory interpretation and a rebuke to our prior discussion of it, the nature of podcasting, and public corruption by tweet. (No links this week.)
Audiobooks, capital, banks, slavery, regulation, choice, racism, and the racial wealth gap. Mehrsa Baradaran joins the show for the fourth time to talk about her latest book. Recorded in front of a live audience at the University of Georgia School of Law. This show’s links: Mehrsa Baradaran’s faculty profile (http://www.law.uga.edu/profile/mehrsa-baradaran) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1178148) Mehrsa Baradaran, The Color of Money: Black Banks and the Racial Wealth Gap (https://www.amazon.com/Color-Money-Black-Racial-Wealth/dp/0674970950) Barack Obama, The President's Role in Advancing Criminal Justice Reform (http://harvardlawreview.org/wp-content/uploads/2017/01/811-866-Online-Rev-vf.pdf) Ta-Nehisi Coates, We Were Eight Years in Power: An American Tragedy (https://www.amazon.com/We-Were-Eight-Years-Power/dp/0399590560) Eric Foner, Reconstruction Updated Edition: America's Unfinished Revolution, 1863-1877 (https://www.amazon.com/Reconstruction-Updated-Unfinished-Revolution-1863-1877/dp/0062354515) (see also Eric Foner, Why Reconstruction Matters (https://www.nytimes.com/2015/03/29/opinion/sunday/why-reconstruction-matters.html) (a brief but informative opinion essay)) Oral Argument 76: Brutality (http://oralargument.org/76) (guest Al Brophy) Sendhil Mullainathan and Eldar Shafir, Scarcity: Why Having Too Little Means So Much (https://scholar.harvard.edu/sendhil/scarcity) Mehrsa Baradaran, How the Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy (https://www.amazon.com/How-Other-Half-Banks-Exploitation/dp/B01MQZYGE8/) Alfred Brophy, Reparations: Pro and Con (https://www.amazon.com/Reparations-Pro-Alfred-L-Brophy/dp/0195304071/) William Darity, Jr. and Dania Frank, The Economics of Reparations (http://www.jstor.org/stable/3132248) Jamelle Bouie and Rebecca Onion, Reconstruction (http://www.slate.com/articles/slate_plus/reconstruction.html) (a podcast from Slate) Special Guest: Mehrsa Baradaran.
Scott Shapiro joins us to discuss how law relates to, well, everything. His article with David Plunkett argues that theorizing about the nature of law is a project to understand how talking and thinking about law fit into reality. But first, we talk with him about Twitter, writing, collaboration, Joe's innermost psyche, and more. This show’s links: Scott Shapiro’s faculty profile (https://law.yale.edu/scott-j-shapiro) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=234075) Scott Shapiro, Legality (https://www.amazon.com/Legality-Scott-J-Shapiro/dp/0674725786) Oona Hathaway and Scott Shapiro, The Internationalists (https://www.amazon.com/Internationalists-Radical-Outlaw-Remade-World/dp/1501109863/) Oral Argument 112: Quasi-Narrative (http://oralargument.org/112) (guest Simon Stern) Scott Shapiro and David Plunkett, Law, Morality and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2964089) Special Guest: Scott Shapiro.
Steve Vladeck rejoins us on the law of civilian-military separation, whether Marbury v. Madison was rightly decided, and how his recent oral argument before the Supreme Court went (spoiler: amazingly but weirdly). (Ignore Christian's use of the term "basises" (wtf?) and other misstatements and inanities ... you try recording ever week between classes....) This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/stephen-i-vladeck) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362455) The National Security Law Podcast 54: Family Ties or Family Matters? (https://www.nationalsecuritylawpodcast.com/ep-54-family-ties-or-family-matters/) First Mondays OT2017 #12: False Idol (http://www.firstmondays.fm/episodes/2018/1/22/ot2017-12-false-idol) (guest Steve Vladeck) SCOTUSblog page for Dalmazzi v. United States (http://www.scotusblog.com/case-files/cases/dalmazzi-v-united-states/) (including links to all the briefs and more) The oral argument: Oyez version (https://www.oyez.org/cases/2017/16-961), SCOTUS downloads (https://www.supremecourt.gov/oral_arguments/audio/2017/16-961), and transcript (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-961_08l1.pdf) Oral Argument 137: Steve Vladeck Pincer Move (http://oralargument.org/137) (where we discussed Dalmazzi at the cert stage) Burns v. Wilson (https://scholar.google.com/scholar_case?case=13501152442303513103) Marbury v. Madison (https://scholar.google.com/scholar_case?case=9834052745083343188) William Baude, Exciting Developments in Supreme Court Appellate Jurisdiction: Some Would Call It the Second Coming of Marbury v. Madison (http://reason.com/volokh/2018/01/08/exciting-developments-in-supreme-court-a) United States v. Coe (https://scholar.google.com/scholar_case?case=18289973798213960260) ex parte Bollman and Swartwout (https://scholar.google.com/scholar_case?case=891096754227370578) Akhil Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court (http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2019&context=fss_papers) Louise Weinberg, Our Marbury (https://law.utexas.edu/faculty/uploads/publication_files/ourmarburypub.pdf) Felker v. Turpin (https://scholar.google.com/scholar_case?case=11980829158634315619); see also Oral Argument 84: Felker's Chickens (http://oralargument.org/84) United States v. Gray (http://www.armfor.uscourts.gov/newcaaf/opinions/2017OctTerm/170525.pdf) Special Guest: Steve Vladeck.
Live to tape, we discuss viewer mail, Tolkien, laptops, and (kind of) a couple of SCOTUS cases. This show’s links: Foundations of American Law (https://www.hydratext.com/foundations-beta/) (an undergraduate course created by Christian, featuring a textbook and companion podcast series with Christian and Joe) Legal Theory 101 (https://www.hydratext.com/legal-theory-101/) (Christian's introductory course to legal philosophy, featuring a reading list (with links) and a companion podcast series)
We find ourselves in a moment of untruth. Our guest, Brad Wendel, talks with us about political and legal truth and their relation to morality and social roles. This show’s links: Brad Wendel's faculty profile (http://www.lawschool.cornell.edu/faculty/bio_bradley_wendel.cfm) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=247191) W. Bradley Wendel, Truthfulness as an Ethical Form of Life (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3072303) Harry Frankfurt, On Bullshit (http://stoa.org.uk/topics/bullshit/pdf/on-bullshit.pdf) Bernard Williams, Saint-Just's Illusion (https://www.lrb.co.uk/v13/n16/bernard-williams/saint-justs-illusion-interpretation-and-the-powers-of-philosophy) (also here (https://books.google.com/books?id=AHol9VbeLUYC&pg=PA135&lpg=PA135&dq=%22saint-just%27s+illusion%22&source=bl&ots=nFGDaDyVqd&sig=fQzZzCAnV4GBPnyhGYZ35DMopGc&hl=en&sa=X&ved=0ahUKEwjn1vK-q9XYAhUq2IMKHTNoAG4Q6AEIQzAF#v=onepage)) Kleindienst v. Mandel (https://scholar.google.com/scholar_case?case=2384957718526063733) Stephen Colbert, The Word: Truthiness (http://www.cc.com/video-clips/63ite2/the-colbert-report-the-word---truthiness) (video from the first episode of the Colbert Report, and it's still unbelievably great) International Refugee Assistance Project v. Trump (https://scholar.google.com/scholar_case?case=2110961142700228731) (4th Circuit en banc) Ninth Circuit's denial of en banc consideration in Washington v. Trump (https://scholar.google.com/scholar_case?case=7212509001957517972) (containing Judge Bybee's dissent) State Bar of Michigan, Informal Ethics Opinion CI-1164 (http://www.michbar.org/opinions/ethics/numbered_opinions/OpinionID=193) Bernard Williams, Truth and Truthfulness (https://books.google.com/books/about/Truth_Truthfulness.html?id=2iaFFE54fYkC) Cynthia Farina, et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1702501) Whole Woman's Health v. Hellerstedt (https://scholar.google.com/scholar_case?case=12719084930434459940) W. Bradley Wendel, Sally Yates, Ronald Dworkin, and the Best View of the Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927113) Fireside (https://fireside.fm)
Holiday nonsense show part 2: on the upcoming Supreme Court arguments Dalmazzi v. United States, millennials and the punishing U.S. economic system, the presidency and the popular vote, and expertise and Twitter. This show’s links: SCOTUSblog page for Dalmazzi v. United States (http://www.scotusblog.com/case-files/cases/dalmazzi-v-united-states/) In That Case podcast (https://inthatcasepodcast.com) Michael Hobbes, FML: Why Millennials Are Facing the Scariest Financial Future of Any Generation Since the Great Depression (http://highline.huffingtonpost.com/articles/en/poor-millennials/) Carissa Byrne Hessick, Towards a Series of Academic Norms for #Lawprof Twitter (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3095014) Oral Argument 89: Adequacy (http://oralargument.org/89) (guest Josh Weishart) Oral Argument 42: Shotgun Aphasia (http://oralargument.org/42) (guest Orin Kerr) How to Block Accounts on Twitter (https://help.twitter.com/en/using-twitter/blocking-and-unblocking-accounts)
Holiday nonsense show part 1: on compressors, the UFOs, nominations of trial judges without trial experience, feuds, listener Brian's question about our evolving balance of optimism and pessimism, listener Andrew's pointing out the public nudity and sex discrimination case Tagami v. City of Chicago, listener Joel's new podcast, the self, our show, conversation and other minds and double escape, humility, art and wilderness. This show’s links: The link to access all topics discussed on this week's show (https://duckduckgo.com) In That Case podcast (https://inthatcasepodcast.com)
How do presidents affect the law when they speak? Should courts consider what they say, defer to what they say, and find governmental intentions in what they say? What if a president says one thing, perhaps improvising during a speech, and an official communication of an agency, the Justice Department, or the White House says another? Kate Shaw joins us to talk about her theory that generally (but not always) courts should ignore presidential statements that are not consciously intended to stake out a legal position. Obviously, there's an 800-pound, tweeting gorilla in the corner of the room. This show’s links: Kate Shaw's faculty profile (https://cardozo.yu.edu/directory/kate-shaw) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2042971) Kate Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2981475) Jeffrey Tulis, The Rhetorical Presidency (https://books.google.com/books/about/The_Rhetorical_Presidency.html?id=TcojDwAAQBAJ) Peter Strauss, Overseer or "The Decider"? The President in Administrative Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=949649) Elena Kagan, Presidential Administration (https://harvardlawreview.org/2010/05/presidential-administration/) Oral argument in the Fourth Circuit in International Refugee Assistance Project v. Trump (https://www.c-span.org/video/?437105-1/fourth-circuit-hears-oral-argument-revised-travel-ban-audio) (Muslim ban 3.0) Kathryn Watts, Controlling Presidential Control (https://repository.law.umich.edu/mlr/vol114/iss5/1/) Jack Goldsmith, Will Donald Trump Destroy the Presidency? (https://www.theatlantic.com/magazine/archive/2017/10/will-donald-trump-destroy-the-presidency/537921/) Special Guest: Kate Shaw.
Sara Schindler returns to the show to talk about the phenomenon and problems of privately owned, publicly open spaces. We start, though, with a brief conversation about art and sexism. Then (12:23), we turn to Sarah's paper. What are POPOS? How are they created? Are they parks on the cheap or amenities of private businesses? Whether it's Balinese chanting in a corporate atrium, places to fly kites, or a spot to meet a new friend, we all need our third places. This show’s links: Sarah Schindler's faculty profile (http://mainelaw.maine.edu/faculty-member/sarah-schindler/) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1099143) Sarah Schindler, The 'Publicization' of Private Space (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2960320) Oral Argument 54: Folly Bridges (http://oralargument.org/59) (an episode we did with Sarah about her paper, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2595294)) Oral Argument 63: A Struggle with Every Single One (http://oralargument.org/63) (guest Jessica Owley) Special Guest: Sarah Schindler.
Constitutional and election law expert Franita Tolson joins us to talk about a little-known section of one of the most well-known parts of the Constitution. The Fourteenth Amendment grants rights enforceable against states, not just against the federal government. And it gives Congress a role in enforcing those rights. But did you know that it also provides an apparently severe and mandatory remedy for abridgments by states of the right to vote? You will. This show’s links: Franita Tolson's faculty profile (http://gould.usc.edu/faculty/?id=73521) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=737594) Franita Tolson, What is Abridgment?: A Critique of Two Section Twos (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2644320) Luther v. Borden (https://scholar.google.com/scholar_case?case=7884047486442944178) (disclaiming power under the Constitution to identify which of two rival factions was the government of Rhode Island); see also Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1696&context=faculty_scholarship) Sharrow v. Brown (https://scholar.google.com/scholar_case?case=13060533703812147352) at footnote 9, for an example of a court wrestling with the seemingly mandatory language of section two's reduction formula Shelby County v. Holder (https://scholar.google.com/scholar_case?case=4053797526279899410) Special Guest: Franita Tolson.
We talk with Greg Klass about the use of recent empirical studies to aid in the restatement of the law of consumer contracts - the one-sided, unread "agreements" that are ubiquitous in modern life. The conversation covers the purpose of restatements, the methodology of empirical legal scholarship, and more. This show’s links: Greg Klass's faculty profile (https://www.law.georgetown.edu/faculty/klass-gregory.cfm) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363445) Greg Klass, A Critical Assessment of the Empiricism in the Restatement of Consumer Contract Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001212) Oral Argument 133: Too Many Darn Radio Buttons (http://oralargument.org/133) (guest Jim Gibson) John Gruber, Apple to Release Software Update to Solve iOS 11 Issue When Typing the Letter "I" (https://daringfireball.net/linked/2017/11/07/ios-11-i) About the ALI's draft Restatement of Consumer Contracts (http://www.thealiadviser.org/consumer-contracts/) Oren Bar-Gill, Omri Ben-Shahar, and Florencia Marotta-Wurgler, Searching for the Common Law: The Quantitative Approach of the Restatement of Consumer Contracts (http://chicagounbound.uchicago.edu/uclrev/vol84/iss1/2/) Florencia Marotta-Wurgler, Does Contract Disclosure Matter? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2736521); Yannis Bakos, Florencia Marotta-Wurgler, David Trossen, Does Anyone Read the Fine Print? Consumer Attention to Standard Form Contracts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1443256) Arthur Leff, Contract as Thing (http://digitalcommons.law.yale.edu/fss_papers/2827/) William Baude, Adam Chilton, and Anup Malani, Making Doctrinal Work More Rigorous: Lessons from Systematic Reviews (http://chicagounbound.uchicago.edu/public_law_and_legal_theory/622/) Gregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2224105) Special Guest: Greg Klass.
We talk with Dave Fagundes about sharing, abandoning, and property law's role in promoting happiness. Topics include the usual nonsense, notions of happiness, consumption and acquisition, charity, and home ownership. This show’s links: Dave Fagundes's faculty profile (http://www.law.uh.edu/faculty/print.asp?PID=5033) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=522757) David Fagundes, Why Less Property Is More: Inclusion, Dispossession, and Subjective Well-Being (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3014320) About Life Is Beautiful (https://en.wikipedia.org/wiki/Life_Is_Beautiful) About Marie Kondo (https://en.wikipedia.org/wiki/Marie_Kondo) David Fagundes, Buying Happiness: Property, Acquisition, and Subjective Well-Being (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733617) Roger Crisp's entry on Well-Being (https://plato.stanford.edu/entries/well-being/) in the Stanford Encyclopedia of Philosophy (including discussions of Bentham's notion and preferentist accounts) About Mr. Burns (https://en.wikipedia.org/wiki/Mr._Burns), character from The Simpsons Rebecca Solnit, The Loneliness of Donald Trump (http://lithub.com/rebecca-solnit-the-loneliness-of-donald-trump/) Juliet Schor and William Attwood-Charles, The Sharing Economy: Labor, Inequality and Sociability on For-Profit Platforms (http://www.bc.edu/content/dam/files/schools/cas_sites/sociology/pdf/SocCompass%20Sharing%20Economy%20v3.pdf) David Fagundes, The Social Norms of Waiting in Line (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2568322) Oral Argument 150: Shutting Down Hal (http://oralargument.org/150) (guest Christina Mulligan); Christina Mulligan, Revenge Against Robots (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016048) Lior Strahilevitz, The Right to Abandon (http://chicagounbound.uchicago.edu/law_and_economics/565/) Eduardo Peñalver, The Illusory Right to Abandon (http://scholarship.law.cornell.edu/facpub/209/) Aaron Perzanowski and Jason Schultz, The End of Ownership (http://www.theendofownership.com) Joshua Fairfield, Owned: Property, Privacy, and the New Digital Serfdom (https://www.amazon.com/Owned-Property-Privacy-Digital-Serfdom/dp/1107159350) Special Guest: Dave Fagundes.
We talk with Christina Mulligan about the salutary effects of smashing robots that have wronged you. Join us for a chat about revenge and satisfaction in the emerging human-robot social space. This show’s links: Christina Mulligan's faculty profile (https://www.brooklaw.edu/faculty/directory/facultymember/biography?id=christina.mulligan) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1557395) Christina Mulligan, Revenge Against Robots (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016048) About Betty Smith's A Tree Grows in Brooklyn (https://en.wikipedia.org/wiki/A_Tree_Grows_in_Brooklyn_(novel)) About the Tree that Owns Itself (https://en.wikipedia.org/wiki/Tree_That_Owns_Itself) The Trial of the Autun Rats (http://www.duhaime.org/LawMuseum/LawArticle-1529/1508-The-Trial-of-the-Autun-Rats.aspx) Oral Argument 70: No Drones in the Park (http://oralargument.org/70) Scott Hershovitz, Tort as a Substitute for Revenge (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2308590) Kate Darling, Palash Nandy, and Cynthia Breazeal, Empathic Concern and the Effect of Stories in Human-Robot Interaction (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639689); Kate Darling, "Who's Johnny?" Anthropomorphic Framing in Human-Robot Interaction, Integration, and Policy (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2588669) Office Space, the printer scene (https://www.youtube.com/watch?v=N9wsjroVlu8) (nsfw) Hunter Walk, Amazon Echo Is Magical. It’s Also Turning My Kid into an Asshole. (https://hunterwalk.com/2016/04/06/amazon-echo-is-magical-its-also-turning-my-kid-into-an-asshole/) Hannah Gold, This Mirror that Forces People to Smile Is Going to Piss Everyone Off (https://jezebel.com/this-mirror-that-forces-people-to-smile-is-going-to-pis-1819828956) Special Guest: Christina Mulligan.
We returned this week to the annual Tech Law Institute meeting in Atlanta. We talk about data, law, and society: Joe and Christian's fight over data on the way to the conference, a new Supreme Court case involving cloud data and international boundaries, and the decisions that technology will force us to make. (Thanks to Jacob Davis for helping us provide written materials for the conference!) This show’s links: SCOTUSblog page on United States v. Microsoft (http://www.scotusblog.com/case-files/cases/united-states-v-microsoft-corp/) (including links to the petitions for cert and the Second Circuit's panel opinion) Paul Schwartz, Legal Access to Cloud Information: Data Shards, Data Localization, and Data Trusts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3008392) The National Security Law Podcast 41: Han Shot First (https://nationalsecuritylawpodcast.com/episode-41-han-shot-first/) (featuring discussion of the United States v. Microsoft) Jennifer Daskal, There's No Good Decision in the Next Big Data Privacy Case (https://www.nytimes.com/2017/10/18/opinion/data-abroad-privacy-court.html?_r=0) SCOTUSblog page on Carpenter v. United States (http://www.scotusblog.com/case-files/cases/carpenter-v-united-states-2/) Oral Argument 42: Shotgun Aphasia (http://oralargument.org/42) (guest Orin Kerr) (discussing Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748222))
We talk with appellate lawyer Chris Landau who represented Puerto Rico in two cases before the Supreme Cost last term. We focus on one of them, in which Puerto Rican criminal convictions were challenged on double jeopardy grounds: that Puerto Rico could not prosecute the defendants because they had already been convicted in federal court on essentially the same charges. This in turn depends on whether Puerto Rico has the same separate sovereign status as the states, whether it itself is the source of its laws or whether the United States is always a silent but superior authority. At bottom this case raised questions about the very identity of this island nation. In the wake of a devastating hurricane and a controversial federal response, we talk about law and sovereign identity - in our usual fashion, going between theory, pragmatic litigation issues, and, in this case, a complicated and fascinating history. This show’s links: Christopher Landau's profile (https://www.kirkland.com/sitecontent.cfm?itemID=8991&contentID=220) SCOTUSblog page on Commonwealth of Puerto Rico v. Sánchez Valle (http://www.scotusblog.com/case-files/cases/puerto-rico-v-sanchez-valle/) (including links to the briefs, opinion, and oral argument) Brian Resnick and Eliza Barclay, What Every American Needs to Know about Puerto Rico’s Hurricane Disaster (https://www.vox.com/science-and-health/2017/9/26/16365994/hurricane-maria-2017-puerto-rico-san-juan-humanitarian-disaster-electricty-fuel-flights-facts) Ediberto Roman, Empire Forgotten: The United States's Colonization of Puerto Rico (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2997685) About the Insular Cases (https://en.wikipedia.org/wiki/Insular_Cases) (including the list of the cases often included in this description) Joseph Blocher and G. Mitu Gulati, Puerto Rico and the Right of Accession (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2988102) Matthew Yglesias, The Jones Act, the Obscure 1920 Shipping Regulation Strangling Puerto Rico, Explained (https://www.vox.com/policy-and-politics/2017/9/27/16373484/jones-act-puerto-rico) Special Guest: Christopher Landau.
Just Joe and Christian, coming to you after a terrible week. We talk guns, ex-Judge Posner's book and humility, the right rules for disabled stoplights, the closing of a coffeehouse, and airplane seat reclining behavior. This show’s links: Oral Argument 101: Tug of War (http://oralargument.org/101) Richard Posner, Reforming the Federal Judiciary (https://www.amazon.com/Reforming-Federal-Judiciary-Televising-Arguments/dp/1976014794) Steven Lubet, Richard Posner, Unedited (Part One) (http://www.thefacultylounge.org/2017/10/richard-posner-unedited.html) Zoran Tasic, Reforming Richard Posner (https://medium.com/@ztasic/reforming-richard-posner-a25ce8fddece) Oral Argument 32: Go Figure (http://oralargument.org/32) (on Judge Posner's gay marriage opinion in Baskin) and Oral Argument 131: Because of Sex (http://oralargument.org/131) (featuring discussion with Anthony Kreis about Judge Posner's Hively opinion) WINIR (http://winir.org) How do you pronounce Utrecht? (https://www.quora.com/How-do-you-pronounce-Utrecht) The Perfect Cappuccino (http://cappuccinomovie.com) Two Story's Last Day in Five Points (http://www.redandblack.com/multimedia/photos-two-story-s-last-day-in-five-points/collection_5a4052c2-a21f-11e7-bd12-5391199be363.html) (including a photo of Christian with the shop's last cap) Christian Turner, The Cost of Foregone Biergartens (https://www.hydratext.com/blog/2013/3/8/the-cost-of-foregone-biergartens.html) Oral Argument 31: Knee Defender (http://oralargument.org/31) (and see episode 32, above, for more knee defender discussion) Christopher Buccafusco and Christopher Jon Sprigman, How to Resolve Fights over Reclining Airplane Seats: Use Behavioral Economics (http://evonomics.com/resolve-fights-reclining-airplane-seats-use-behavioral-economics/)
With Charles Barzun, we discuss Justice Souter and the nature of legal justification. But we take the long way around to get there, starting with some of Souter’s opinions, moving on to philosophy – the nature of moral reasoning and its relation to fact and intuition – and then back to legal theory and Charles’s insight concerning Justice Souter’s jurisprudence. This show’s links: Charles Barzun’s faculty profile (https://content.law.virginia.edu/faculty/profile/clb6x/1144315) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=546584) Charles Barzun, Justice Souter’s Common Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3035402) Justice Souter’s discussion of Plessy and the role of history in judging (http://www.c-span.org/video/?284498-2/america-courts) (watch from minute one until about minute fourteen) and his Harvard Commencement speech (http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/) on Plessy Some Souter opinions Joe loves: Campbell v. Acuff-Rose Music (https://scholar.google.com/scholar_case?case=16686162998040575773), Markman v. Westview Instruments (https://scholar.google.com/scholar_case?case=5582995013670943601), and California Dental Assoc. v. Federal Trade Commission (https://scholar.google.com/scholar_case?case=8595505836313744277) Old Chief v. United States (https://scholar.google.com/scholar_case?case=2711105174348004240); Oyez’s Old Chief page, including links to the oral argument and hand-down (https://www.oyez.org/cases/1996/95-6556) Planned Parenthood v. Casey (https://scholar.google.com/scholar_case?case=6298856056242550994); Oyez’s Casey page, including links to the oral argument and hand-down (https://www.oyez.org/cases/1991/91-744) John Burnett, Border Patrol Arrests Parents While Infant Awaits Serious Operation (http://www.npr.org/2017/09/20/552339976/border-patrol-arrests-parents-while-infant-awaits-serious-operation) Noah Feldman’s Constitution Day interview of Justice Souter (https://www.c-span.org/video/?288993-2/former-justice-souter-constitution) Special Guest: Charles Barzun.
Back after a long hiatus, we talk about Joe’s latest work on patent law and Supreme Court citations networks. Opening a banana, the opening of corpse flowers, the eclipse, news non-roundup, DACA and naming, and, finally, Joe’s paper, examining the steep increase in patent cases before the Supreme Court over the last two decades by mapping citation networks among intellectual property cases, at 20:02. This show’s links: Joseph Miller, Which Supreme Court Cases Influenced Recent Supreme Court IP Decisions? A Citation Study (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3012262) How to peel a banana (http://www.slate.com/articles/arts/food/2014/02/banana_peeling_trick_video_shows_bottom_first_best_method.html) Three Corpse Flowers Bloomed at USBG in 2017 (https://www.usbg.gov/three-corpse-flowers-bloomed-usbg-2017) Fred Espenak, Periodicity of Solar Eclipses (http://www.eclipsewise.com/solar/SEhelp/SEperiodicity.html) About Predestination (https://en.wikipedia.org/wiki/Predestination_(film)) (which is based on All You Zombies by Robert Heinlein) (Warning: Do Not Read the Plot Summary, just see the movie) About Saturday morning cartoon preview specials (https://en.wikipedia.org/wiki/Saturday_morning_preview_specials) About the Court of Appeals for the Federal Circuit (https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Federal_Circuit) Court Listener’s Supreme Court Citation Networks tool (https://www.courtlistener.com/visualizations/scotus-mapper/) Scott Dodson and Colin Starger, Mapping Supreme Court Doctrine: Civil Pleading (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2422160) (Starger’s other papers on SSRN trace NFIB and Windsor)
We ramble about various non-law things. Maybe this will become the first installment of our annual beach episode series, in which we casually let it all hang out and take a vacation from law. We'll be back in a couple of weeks with the usual nonsense, rather than this unusual nonsense.
More than the usual nonsense and sniffles as we try to empty the mailbag. Note: Because of a massive gap between time available and time required to edit out the gak, this episode contains many more than the average number of sniffles and echoes. We tried to fire the editor responsible but learned he was one of us, unpaid, and would either be able to release this episode as is or not at all. Religion and American policy (6:19), a chrono-completist suggests a show topic (10:51), on sex discrimination (14:08), incentives for creation (22:16), boilerplate and terms of service (27:04), antitrust and big data (28:50), boilerplate and the FyreFestival (36:59), boilerplate and arbitration and class actions and airline passengers (38:43), ye ole 1x vs. 2x debate and binge-watching/listening (45:35), Asher Steinberg on the major question exception to Chevron (51:21), self-promotion (52:30), “research” not equal to “to search again”(54:03), Grimmelman’s Property Course and IP and the bar exam (57:14), ethicists and the morality of expedited review (1:03:34), return to the place of the constitutional law course (1:06:22), the limited role of books on the web (1:11:47), cosplay (1:13:40), Joel’s article (1:14:22), the politicization of the U.S. Supreme Court and its appointments compared to other countries and more on the Crossover episode (1:15:01), argument in the monkey selfie case (1:23:15), Wonder Woman and Star Trek vs. Star Wars (1:25:06). This show’s links: Oral Argument 101: Tug of War (https://oralargument.org/101) (on gun violence) Oral Argument 131: Because of Sex (https://oralargument.org/131) (guest Anthony Kreis on sex discrimination) Oral Argument 28: A Wonderful Catastrophe (https://oralargument.org/28) (on Joe’s favorite case(s)) Oral Argument 132: The Soul of Music (https://oralargument.org/132) (guest Joe Fishman on copyright in music) Nicholas Georgakopoulos, The Logic of Securities Law (https://www.amazon.com/Logic-Securities-Law-Nicholas-Georgakopoulos/dp/1107158508/ref=sr_1_1?s=books&ie=UTF8&qid=1491051115&sr=1-1&keywords=georgakopoulos%2C+logic+of+securities+law) Oral Argument 133: Too Many Darn Radio Buttons (https://oralargument.org/133) (guest Jim Gibson on boilerplate in contracts) HBO, Silicon Valley: Terms of Service (http://www.hbo.com/silicon-valley/episodes/4/30-terms-of-service/index.html); see also Nick Statt, HBO’s Silicon Valley Wades into a Heated Debate about Privacy Policies (https://www.theverge.com/2017/5/1/15504692/hbo-silicon-valley-season-4-episode-2-terms-of-service-recap) From The Economist, no byline: The World’s Most Valuable Resource Is No Longer Oil, but Data (http://www.economist.com/news/leaders/21721656-data-economy-demands-new-approach-antitrust-rules-worlds-most-valuable-resource) Oral Argument 139: It’s All the Stacey Show (https://oralargument.org/139) (guest Stacey Dogan on competition law and IP) About the Fyre Festival (https://en.wikipedia.org/wiki/Fyre_Festival) Jens David Ohlin, United Airlines’ Own Contract Denied It Any Right to Remove Passenger (http://www.dorfonlaw.org/2017/04/united-airlines-own-contract-denied-it.html) Asher Steinberg, Another Addition to the Chevron Anticanon: Judge Kavanaugh on the “Major Rules” Doctrine (http://narrowestgrounds.blogspot.com/2017/05/another-addition-to-chevron-anticanon.html) Oral Argument 135: Alexandria (https://oralargument.org/135) (guest James Grimmelman on the Google Books settlement and other things) Crabbe's English Synonymes [sic], Centennial Edition (1917), at p. 228 (https://books.google.com/books?id=4UBAAQAAMAAJ&pg=PA228&dq=%22the+particle+re%22+intensive+french&hl=en&sa=X&ved=0ahUKEwickeCZ5O_TAhXi6YMKHUG1BPAQ6AEIJzAA#v=onepage&q=%22the%20particle%20re%22%20intensive%20french&f=false) (“re” as intensive) Oral Argument 61: Minimum Competence (https://oralargument.org/61) (guest Derek Muller on the bar exam) Oral Argument 96: Students as Means (https://oralargument.org/96) George Bodarky, How New York’s Roosevelt Island Sucks Away Summer Trash Stink (http://www.npr.org/2017/07/26/539304811/how-new-york-s-roosevelt-island-sucks-away-summer-trash-stink) Joel Townsend, Adequacy of Risk Assessment in the Exercise of the Character Cancellation Power under the Migration Act 1958 (Cth) (http://sites.thomsonreuters.com.au/journals/2017/06/11/public-law-review-update-vol-28-pt-2/) (abstract public, paper behind a paywall) Oral Argument 134: Crossover (https://oralargument.org/134) (with the hosts of First Mondays (http://www.firstmondays.fm)) The oral argument in Naruto v. Slater (https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000011851) (the monkey selfie case at 1:46:00 in the video) Oral Argument 141: The Picard Meltdown Principle (https://oralargument.org/141) (guest Leah Litman) Oral Argument 142: Normativity (https://oralargument.org/142) (guest Jeffrey Kaplan)
Jeffrey Kaplan joins us to discuss his work in philosophy on the nature of law, law’s connection to morality, and the way law gives us reasons to follow it. We discuss the connection with Christian’s work and also succeed (wildly but sporadically) in providing the usual nonsense. This show’s links: Jeffrey Kaplan’s webpage (https://www.jeffreykaplan.org) First Mondays (http://www.firstmondays.fm) Summary Judgment (https://www.summaryjudgmentpod.com) Jeffrey Kaplan, Attitude and the Normativity of Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2991878) Christian Turner, Models of Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2835112) Christian Turner, Legal Theory 101 (https://www.hydratext.com/legal-theory-101/) (note the links and episodes on Hart, Dworkin, Fuller, Shapiro, and Hershovitz Scott Hershovitz, The End of Jurisprudence (http://www.yalelawjournal.org/pdf/f.1160.Hershovitz.1204_96n1tozj.pdf) Stephen Perry, Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View (http://scholarship.law.upenn.edu/faculty_scholarship/1107/) Scott Shapiro, The Planning Theory of Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2937990) David Plunkett and Scott Shapiro, Law, Morality and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2964089) Brian Tamanaha, A Realistic Theory of Law (https://www.amazon.com/Social-Legal-Theory-Modern-Transformation/dp/1316638510) Brian Tamanaha, Necessary and Universal Truths About Law? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2799935) Anil Seth, Your Brain Hallucinates Your Conscious Reality (https://www.ted.com/talks/anil_seth_how_your_brain_hallucinates_your_conscious_reality/up-next) (TED Talk)
Leah Litman joins us to discuss the problematic argument that a law’s novelty is a reason to believe it is unconstitutional. In particular, she focuses on arguments that statutes that affect the separation of powers or the federalism balance are suspect if they are somehow unprecedented. Also, brief updates on: a wasp, Joe’s living situation, Christian’s health, Leah’s bee-related flight delay. This show’s links: Leah Litman’s faculty profile (http://www.law.uci.edu/faculty/full-time/litman/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2361860) Leah Litman, Debunking Antinovelty (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2843763) First Mondays (http://www.firstmondays.fm/) United States v. Windsor (https://scholar.google.com/scholar_case?case=6241888197107641609); Romer v. Evans (https://scholar.google.com/scholar_case?case=17758055891258118781) Printz v. United States (https://scholar.google.com/scholar_case?case=10894716839911389166); Free Enterprise Fund v. PCAOB (https://scholar.google.com/scholar_case?case=12800232869146089406); NFIB v. Sibelius (Obamacare I) (https://scholar.google.com/scholar_case?case=11973730494168859869) Cass Sunstein, Incompletely Theorized Agreements (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995488) PHH Corp. v. Consumer Financial Protection Bureau (https://scholar.google.com/scholar_case?case=668509147734540905) Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (https://books.google.com/books?id=rxqSEU7y6lkC&q=%22orthodox+view%22#v=snippet&q=%22orthodox%20view%22&f=false) Special Guest: Leah Litman.
If the president does it, is it automatically legal? Of course not, but why not? How is the president constrained by law? Daphna Renan joins us to talk about the structures within the Executive Branch and the attitudes toward them that define what the legal constraints presidents create for themselves. From the post-Watergate efforts to create independent and legalistic sources of Marbury-like trumps on presidential prerogative to today’s chaos, Daphna explores the many design choices between formality and informality, centralization and diffusion, and independence and control. Also the normal nonsense. This show’s links: Daphna Renan’s faculty profile (http://hls.harvard.edu/faculty/directory/11495/Renan) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2426885) Daphna Renan, The Law Presidents Make (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2948177) About the Office of Legal Counsel (https://en.wikipedia.org/wiki/Office_of_Legal_Counsel), the White House Counsel (https://en.wikipedia.org/wiki/White_House_Counsel), and the Solicitor General (https://en.wikipedia.org/wiki/Solicitor_General_of_the_United_States) Jeremy Waldron, Separation of Powers in Thought and Practice? (http://lawdigitalcommons.bc.edu/bclr/vol54/iss2/2/) Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (https://books.google.com/books/about/The_Terror_Presidency.html?id=3uFre3VPSz8C) Special Guest: Daphna Renan.
IP expert Stacey Dogan joins us to discuss: the merits and demerits of trademark law, values and stock characters of IP, non-interference and design choice, antitrust and IP optimists and skeptics, BU’s new clinics and collaborations with MIT for law and innovation. This show’s links: Stacey Dogan’s faculty profile (https://www.bu.edu/law/profile/stacey-dogan/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=87890) Barton Beebe, Intellectual Property Law and the Sumptuary Code (https://harvardlawreview.org/2010/02/intellectual-property-law-and-the-sumptuary-code/) Smith v. Chanel (https://scholar.google.com/scholar_case?case=16887560236890964726) Stacey Dogan and Mark Lemley, Parody as Brand (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2170498) Stacey Dogan, The Role of Design Choice in Intellectual Property and Antitrust Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2862594) INS v. AP (https://scholar.google.com/scholar_case?case=16577297531712180725), Berkey Photo v. Eastman Kodak (https://scholar.google.com/scholar_case?case=9338840886663363935), Sony Corp. v. Universal City Studios (https://scholar.google.com/scholar_case?case=5876335373788447272), and MGM v. Grokster (https://scholar.google.com/scholar_case?case=8647956476676426155) About the Microsoft Antitrust Litigation (https://en.wikipedia.org/wiki/United_States_v._Microsoft_Corp.) Kim Zetter, Federal Judge Throws out Gag Order Against Boston Students in Subway Case (https://www.wired.com/2008/08/federal-judge-t) Peter Dizikes, New Legal Program to Support Students (https://news.mit.edu/2015/support-students-business-cyber-law-0909) About the BU School of Law’s Entrepreneurship and Intellectual Property Clinic (http://sites.bu.edu/elawclinic/about-the-clinic/) And about the school’s Technology and Cyberlaw Clinic (http://sites.bu.edu/tclc/about-the-clinic/) Special Guest: Stacey Dogan.
CRACKDOWN TIME, with Mila Sohoni! Whatever the law says in the books, it is felt by all of us when it is enforced. How should we think about a sudden change in enforcement priorities that cracks down on some allegedly bad thing? Mila helps us to understand the many reasons agents might have to crack down. From sudden, strict, money-raising speed-limit enforcement to rounding up minorities. We discuss connection with interpretation and “islands of simple literalism,” the role of judges in holding and rhetoric. And speed traps return! This show’s links: Mila Sohoni’s faculty profile (https://www.sandiego.edu/law/faculty/profiles/bio.php?ID=1252) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=976436) Mila Sohoni, Crackdowns (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2877476) Bond v. United States (https://scholar.google.com/scholar_case?case=14369486041709640908) and Yates v. United States (https://scholar.google.com/scholar_case?case=4276838743116849486) Judge Reinhardt’s concurrence in Ortiz v. Sessions (https://scholar.google.com/scholar_case?case=15687290100748814315) Jed Rakoff, The Financial Crisis: Why Have No High-Level Executives Been Prosecuted? (http://www.nybooks.com/articles/2014/01/09/financial-crisis-why-no-executive-prosecutions/) Enquist v. Oregon Department of Agriculture (https://scholar.google.com/scholar_case?case=4204636530314193260) About the Devil’s Advocate (https://en.wikipedia.org/wiki/Devil%27s_advocate) Zachary Price, Reliance on Nonenforcement (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2823808) (see also his Washington Post op-ed Could the Trump Administration Entrap Dreamers? (https://www.washingtonpost.com/opinions/entrapping-the-dreamers/2016/11/24/36ac92b0-b19f-11e6-8616-52b15787add0_story.html?utm_term=.3c318b1166a5)) Special Guest: Mila Sohoni.
Where federal courts, national security, and subtle but important problems lurk, you’ll find Steve Vladeck explaining things. Steve joins us to talk about a seemingly narrow question of the proper application a statute prohibiting civil-office holding by military officers. The issue, though, could hardly be more far-reaching, asking us to consider the principles of civilian control of the military and military non-control of civil life. Also, a little on the use of “treason” to describe the allegations of the Trump campaign’s collusion with Russian operatives and Flynn’s work for Turkey. This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/stephen-i-vladeck), academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362455), and blogging on Lawfare (https://lawfareblog.com/contributors/svladeck) The National Security Law Podcast (https://www.nationalsecuritylawpodcast.com) and in particular episode 21: A Military Commissions Deep Dive (https://www.nationalsecuritylawpodcast.com/episode-21-a-military-commissions-deep-dive/) Steve Vladeck, An Unconventional Test Case for Civilian Control of the Military (https://lawfareblog.com/unconventional-test-case-civilian-control-military) SCOTUSblog page for Dalmazzi v. United States (http://www.scotusblog.com/case-files/cases/dalmazzi-v-united-states/) (containing links to the opinion below and all briefing) Edmond v. United States (https://scholar.google.com/scholar_case?case=378350361225082100) In re Al-Nashiri (https://scholar.google.com/scholar_case?case=1182013408965603282) Steve Vladeck, The Misbegotten Court of Military Commission Review (https://www.lawfareblog.com/misbegotten-court-military-commission-review) Christian Turner, Submarine Statutes (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2913641) William Eskridge and John Ferejohn, Super-Statutes (http://scholarship.law.duke.edu/dlj/vol50/iss5/3/) Kathleen McInnis, Statutory Restrictions on the Position of Secretary of Defense: Issues for Congress (https://fas.org/sgp/crs/natsec/R44725.pdf) (an excellent and highly readable Congressional Research Service report on civilian control of the military and civil-military relations) Steve Vladeck, [Calling it] Treason Doth Never Prosper… (https://www.justsecurity.org/39204/calling-it-treason-doth-prosper/) Diane Mazur, A More Perfect Military (https://www.amazon.com/More-Perfect-Military-Constitution-Stronger/dp/0195394488) Special Guest: Steve Vladeck.
With Zahr Said, we discuss what makes creative works similar and the role of the “reader” in constructing a work’s meaning. Christian derails with a James Bond commercial. But we get back on track and talk about paintings, poems, Star Wars, textualism, and the Big Sick. This show’s links: Zahr Said’s faculty profile (https://www.law.washington.edu/directory/profile.aspx?ID=602) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1030166) Zahr Said, A Transactional Theory of the Reader in Copyright Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2902765) Joseph Miller, Hoisting Originality (http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1778&context=fac_artchop) About Louise Rosenblatt (https://en.wikipedia.org/wiki/Louise_Rosenblatt) Oral Argument 132: The Soul of Music (http://oralargument.org/132) (guest Joe Fishman) Joseph Fishman, Music as a Matter of Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2931091) Mark A. Lemley, Our Bizarre System for Proving Copyright Infringement (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1661434) Shyamkrishna Balganesh, The Normativity of Copying in Copyright Law (http://dlj.law.duke.edu/article/the-normativity-of-copying-in-copyright-law/) Laura Heymann, Reading Together and Apart: Juries, Courts, and Substantial Similarity in Copyright Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2958263) Jacob Lawrence, The Studio (https://www.wikiart.org/en/jacob-lawrence/the-studio-1977) Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright Law (http://scholarship.law.georgetown.edu/fwps_papers/148/) Adrienne Rich, Turbulence (http://wwnorton.tumblr.com/post/11358653379/turbulence-adrienne-rich) The Big Sick (https://en.wikipedia.org/wiki/The_Big_Sick) Special Guest: Zahr Said.
Internet, technology, and property scholar James Grimmelmann joins us to discuss, among other things, the fight over the Google Books settlement, modern Libraries of Alexandria, and the nature of the legal academic mission. This show’s links: James Grimmelmann’s wesbite (http://james.grimmelmann.net) (containing links to his scholarship, courses, blog, and more) Cornell Tech (https://tech.cornell.edu) James Somers, Torching the Modern-Day Library of Alexandria (https://www.theatlantic.com/technology/archive/2017/04/the-tragedy-of-google-books/523320/) James Grimmelmann, Future Conduct and the Limits of Class-Action Settlements (http://james.grimmelmann.net/files/articles/future-conduct.pdf) For many resources on the Google Books case and settlement, visit the site James and his students created: thepublicindex.org (http://www.thepublicindex.org) Authors Guild v. Google (https://scholar.google.com/scholar_case?case=2220742578695593916); Authors Guild v. HathiTrust (https://scholar.google.com/scholar_case?case=4571528653505160061) Sony Corp. v. Universal Studios (https://scholar.google.com/scholar_case?case=5876335373788447272) About A&M Records, Inc. v. Napster, Inc. (https://en.wikipedia.org/wiki/A%26M_Records,_Inc._v._Napster,_Inc.) Video from the panel discussion (https://archive.org/details/Orphanworksandmassdigitization20120412) at UC Berkeley’s April 2012 Orphan Works and Mass Digitization Conference diybookscanner.org (https://diybookscanner.org) Internet Archive Books (https://archive.org/details/internetarchivebooks) Vernor Vinge, Rainbow’s End (https://www.amazon.com/Rainbows-End-Vernor-Vinge/dp/0812536363) About shotgun sequencing (https://en.wikipedia.org/wiki/Shotgun_sequencing), the DNA sequencing method used by Celera Genomics to sequence the human genome in 2000 James Grimmelmann, Scholars, Teachers, and Servants (https://james.grimmelmann.net/files/articles/scholars-teachers-servants.pdf) New York Law School’s In re Books Conference (http://www.nyls.edu/innovation-center-for-law-and-technology/iilp-archive/iilp-conferences/in_re_books/) Special Guest: James Grimmelmann.
It’s finally here, the one where we talk with the hosts of the world-famous First Mondays podcast, Ian Samuel and Dan Epps. Topics include physics conundrums, podcasts (05:13), the politics of Supreme Court nominations (27:08), and radically changing the rules governing the Supreme Court’s docket (54:54). This show’s links: First Mondays (http://www.firstmondays.fm) Dan Epps’ faculty profile (http://law.wustl.edu/faculty_profiles/profiles.aspx?id=10752) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=462731) Ian Samuel’s faculty profile (http://hls.harvard.edu/faculty/directory/11599/Samuel/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=936551) Feynman on mirrors (https://www.youtube.com/watch?v=msN87y-iEx0) Randall Munroe, The Goddamn Airplane on the Goddamn Treadmill (https://blog.xkcd.com/2008/09/09/the-goddamn-airplane-on-the-goddamn-treadmill/) Randall Munroe, xkcd: 28-Hour Day (https://xkcd.com/320/) Christian Turner, Podcasts (https://www.hydratext.com/blog/2014/1/11/podcasts) (and somehow this post about Streamers (https://www.macupdate.com/app/mac/14575/streamers) is still online) The Bernie Sanders Show (https://www.sanders.senate.gov/bernies-podcast) Chris Guthrie and Tracey George, Remaking the United States Supreme Court in the Courts' of Appeals Image (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374449) Whole Woman’s Health v. Hellerstedt (https://scholar.google.com/scholar_case?case=12719084930434459940); Planned Parenthood v. Casey (https://scholar.google.com/scholar_case?case=6298856056242550994) Nina Martin, The Supreme Court Decision That Made a Mess of Abortion Rights (http://www.motherjones.com/politics/2016/02/supreme-court-decision-mess-abortion-rights) Barry Friedman, The Will of the People (https://books.google.com/books/about/The_Will_of_the_People.html?id=V004NCn4Vm8C) Daniel Epps and William Ortman, The Lottery Docket (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2928275) John Duffy, The Federal Circuit in the Shadow of the Solicitor General (http://www.gwlr.org/wp-content/uploads/2012/08/78-3-Duffy.pdf) Washington Energy Co. v. United States (https://scholar.google.com/scholar_case?case=297528725569885130) Oral Argument 28: A Wonderful Catastrophe (http://oralargument.org/28) (background for Joe’s Erie question) Expression Hair Design v. Schneiderman (https://www.supremecourt.gov/opinions/16pdf/15-1391_g31i.pdf); Guido Calabresi, Federal and State Courts: Restoring a Workable Balance (http://digitalcommons.law.yale.edu/fss_papers/2123/) The First Mondays Patreon page (https://www.patreon.com/firstmondays) Special Guests: Dan Epps and Ian Samuel.
By listening to this podcast YOU AGREE to arbitrate all disputes in Florida and to forego class actions and consequential damages. This week: Jim Gibson on boilerplate terms in contracts. What to do with contract terms that aren’t read? This show’s links: Jim Gibson’s faculty profile (http://law.richmond.edu/faculty/jgibson/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=354288) James Gibson, Boilerplate's False Dichotomy (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2947328) Lucian Bebchuk and Richard Posner, One-Sided Contracts in Competitive Consumer Markets (http://repository.law.umich.edu/mlr/vol104/iss5/1/) Karl Llewellyn, Review: The Standardization of Commercial Contracts in English and Continental Law by O. Prausnitz (https://www.jstor.org/stable/1334280?seq=1#page_scan_tab_contents) ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=11811009805458694240) Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (https://books.google.com/books/about/Boilerplate.html?id=txurzpvKQJoC) Boilerplate: Foundations of Market Contracts (http://repository.law.umich.edu/mlr/vol104/iss5/), a Michigan Law Review symposium that includes writing by Omri Ben-Shahar, Margaret Jane Radin, Todd Rakoff, Henry Smith, and many others Special Guest: Jim Gibson.
What is music? With IP scholar Joe Fishman, we talk about music to work by, whether being unable to imagine doing anything else is a sign you’re doing the right thing, and, mostly, what in music should be protected by copyright. Is the essence of music just melody? And should copyright aim at any such essence? How does our choice about legal protection affect the kind of music people make - and should we worry about that? Why am I asking so many questions? Will these show notes ever end? This show’s links: Joseph Fishman’s faculty profile (https://law.vanderbilt.edu/bio/joseph-fishman) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1347567) Joseph Fishman, Music as a Matter of Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2931091) About Alban Berg (https://en.wikipedia.org/wiki/Alban_Berg) (unsurprising that Joe takes a strident and wrong position against both Christian and guest Joe (writing the show notes has fringe benefits)) Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry (http://www.jstor.org/stable/pdf/724403.pdf?seq=1#page_scan_tab_contents) Justice Nelson’s opinions: Hotchkiss v. Greenwood (https://scholar.google.com/scholar_case?case=16500126654571728643) and Jollie v. Jacques (http://mcir.usc.edu/cases/Before1900/Pages/jolliejaques.html) About “rhythm changes” in jazz (https://en.wikipedia.org/wiki/Rhythm_changes) Joseph Miller, Hoisting Originality (http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1778&context=fac_artchop) Andres Guadamuz, Is It Time to Examine the Concept of Originality in Musical Works? (http://ip.jotwell.com/is-it-time-to-examine-the-concept-of-originality-in-musical-works/) (discussing cases like the “Blurred Lines” case, Williams v. Gaye (now before the Ninth Circuit), as illuminated by Emma Steel, Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form (unavailable thanks to copyright law)) Song Exploder (http://songexploder.net) (and the episode on the Moonlight soundtrack (http://songexploder.net/moonlight)) Special Guest: Joseph Fishman.
Friend of the show and treasured guest Anthony Kreis returns to talk about important recent developments in legal protection of gay rights. We discuss the recent spate of appellate decisions finding discrimination against gay employees violates the Civil Rights Act, including a remarkable concurrence by Judge Posner. The interesting issue, though, is why. This show’s links: Anthony Kreis’s faculty profile (https://www.kentlaw.iit.edu/faculty/full-time-faculty/anthony-michael-kreis), his writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2277553), and his twitter feed (https://twitter.com/AnthonyMKreis) Oral Argument 36: Firehose of Equality (http://oralargument.org/36) (Anthony’s last, historic guest appearance on the show) Anthony Kreis, Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2944046) Seventh Circuit, Hively v. Ivy Tech Community College (https://scholar.google.com/scholar_case?case=3783878574608367042) (includes the concurrence of Judge Posner that occupies much of our discussion) Second Circuit, Anonymous v. Omnicom Group (https://scholar.google.com/scholar_case?case=1449039503425455437) Eleventh Circuit, Evans v. Georgia Regional Hospital (https://scholar.google.com/scholar_case?case=6662354858682210483) William Eskridge and John Ferejohn, [Super-Statutes][eskridge] [eskridge]: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj Special Guest: Anthony Kreis.
Joe and Christian discuss submarine statutes, the essence of decisionmaking, and the problems of complexity and institutional fit. And we discuss some viewer mail: on partisan cooperation between levels of government, Joe’s lack of knitting diligence, and supercomputers. This show’s links: Jessica Bulman-Pozen, Partisan Federalism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291000); Jessica Bulman-Pozen, Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2366388) Christian Turner, Submarine Statutes (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2913641) Harlan F. Stone, The Common Law in the United States (http://www.jstor.org/stable/1333183?seq=1#page_scan_tab_contents) Marty Lederman, Why the Strikes Against Syria Probably Violate the U.N. Charter and (Therefore) the U.S. Constitution (https://www.justsecurity.org/39674/syrian-strikes-violate-u-n-charter-constitution/); Harold Koh, Not Illegal: But Now The Hard Part Begins (https://www.justsecurity.org/39695/illegal-hard-part-begins/); Marty Lederman, My Discrete but Important Disagreement with Harold Koh on the Lawfulness of the Strikes on Syria (https://www.justsecurity.org/39704/discrete-disagreement-harold-koh-lawfulness-strikes-syria/)
We dig into the mailbag and discuss legal foundations, grammar, the Establishment Clause, LaTex, OralArgCon, and Submarine Statutes, and more. No show notes this week.
We talk with federalism scholar Jessica Bulman-Pozen about how things get done in an age of partisan polarization. Executive federalism, the negotiated implementation of policy between the executive branch and states, not only leads to state-differentiated refractions of national policy, but, Jessica argues, is the right form of governance in gridlocked times. This show’s links: Jessica Bulman-Pozen’s faculty profile (http://www.law.columbia.edu/faculty/jessica-bulman-pozen) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=825651) Jessica Bulman-Pozen, Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2366388) Ernest A. Young, Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of Overlapping Regulatory Jurisdiction (http://scholarship.law.duke.edu/faculty_scholarship/3540/) Jessica Bulman-Pozen, Executive Federalism Comes to America (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687205) James M. Cole, DOJ Memorandum Guidance Regarding Marijuana Enforcement (https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf) Special Guest: Jessica Bulman-Pozen.
When people say they can do whatever they want with their property, what do they mean? With Christopher Newman, we go back to first principles to think about property and copyright in new, and yet old, ways. This show’s links: Christopher Newman’s faculty profile (http://www.law.gmu.edu/faculty/directory/fulltime/newman_christopher) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1222496) Christopher Newman, Vested Use-Privileges in Property and Copyright (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2897083) Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (https://archive.org/details/jstor-785533) Christian Turner, Legal Theory 101, Reading 3: Hohfeld (https://www.hydratext.com/malt2016/2016/8/14/reading-3-hohfeld) Tom Bell and Chris Newman discussing (https://www.cato.org/events/intellectual-privilege) Bell’s book, Intellectual Privilege (https://books.google.com/books?id=JTanAwAAQBAJ) Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (https://scholar.google.com/scholar_case?case=4226653435664355113) Lucas v. South Carolina Coastal Council (https://scholar.google.com/scholar_case?case=659168721517750079) Eric Claeys, Labor, Exclusion, and Flourishing in Property Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665829) Folsom v. Marsh (https://h2o.law.harvard.edu/cases/5238) and Sony Corp. v. Universal City Studios (https://scholar.google.com/scholar_case?case=5876335373788447272) Christopher Newman, [An Exclusive License Is Not an Assignment: Disentangling Divisibility and Transferability of Ownership in Copyright][newman2] [newman2]: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286833 Special Guest: Christopher Newman.
We continue our discussion of the rights of non-citizens, this time with immigration scholar and award-winning fiddle player Jason Cade. We discuss Jason’s latest research into the judicial and administrative responses to of deportation. (Note that we recorded this a few hours before the 9th Circuit released its decision in Washington v. Trump.) This show’s links: Jason Cade’s faculty profile (http://www.law.uga.edu/profile/jason-cade) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1690889) Jason Cade, Judging Immigration Equity: Deportation and Proportionality in the Supreme Court (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2834088) About IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) (https://en.wikipedia.org/wiki/Illegal_Immigration_Reform_and_Immigrant_Responsibility_Act_of_1996) About AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996) (https://en.wikipedia.org/wiki/Antiterrorism_and_Effective_Death_Penalty_Act_of_1996) James Fallows, Washington and the Contract with America (http://www.theatlantic.com/past/docs/unbound/jfnpr/jfreview.htm) The White House’s summary of the Constitution and Bill of Rights (https://www.whitehouse.gov/1600/constitution) Yamataya v. Fisher (The Japanese Immigrant Case) (https://scholar.google.com/scholar_case?case=18003046466828127036) Arizona v. United States (https://scholar.google.com/scholar_case?case=17891750818453472454) Fifth Circuit, Texas v. United States (https://scholar.google.com/scholar_case?case=11729216214209225109) Padilla v. Kentucky (https://scholar.google.com/scholar_case?case=16837631125059475725) Fernanda Santos, She Showed Up Yearly to Meet Immigration Agents. Now They’ve Deported Her. (https://www.nytimes.com/2017/02/08/us/phoenix-guadalupe-garcia-de-rayos.html) Michael Wishnie, Immigration Law and the Proportionality Requirement (http://digitalcommons.law.yale.edu/fss_papers/4138/) Oral Argument 125: The Elephant (http://oralargument.org/125) Washington v. Trump (http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf) (released a few hours after this recording) Hog-eyed Man (https://www.hogeyedman.com) Special Guest: Jason Cade.
Steve Vladeck returns to the show to talk with us about Due Process and immigration, Trump’s Executive Order on Muslim immigration, and the role of courts in war and quasi-war. This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/siv245/) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362455) The National Security Law Podcast (http://www.nationalsecuritylawpodcast.com) Steve Vladeck, The Supreme Court, the Trump Transition, and the Future of the Constitutional “Border” (https://www.justsecurity.org/36234/border/) (a concise overview of the Supreme Court cases under discussion, also contains links to SCOTUSblog pages where you can find briefs) The Immigration Executive Order (http://www.npr.org/2017/01/31/512439121/trumps-executive-order-on-immigration-annotated) with annotations by NPR reporters Steve Vladeck, The Airport Cases: What Happened, and What’s Next? (https://www.justsecurity.org/36960/stock-weekends-district-court-orders-immigration-eo/) Benjamin Wittes, Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas (https://lawfareblog.com/malevolence-tempered-incompetence-trumps-horrifying-executive-order-refugees-and-visas) ACLU’s compendium of documents in Loughalam v. Trump (https://aclum.org/cases-briefs/louhghalam-v-trump/) (the Boston case) Tuaua v. United States (https://scholar.google.com/scholar_case?case=14728241865713760068) Boumediene v. Bush (https://scholar.google.com/scholar_case?case=2483936489630436485) Stephen Vladeck, The Suspension Clause as a Structural Right (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020265) The Obama White House Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/Legal_Policy_Report.pdf); see also commentary from Marty Lederman (https://www.justsecurity.org/35239/president-obamas-report-legal-policy-frameworks-guiding-united-states-military-force-related-national-security-operations/) Al-Aulaqi v. Obama (https://scholar.google.com/scholar_case?case=1758537122087571034) (against the targeting) and Al-Aulaqi v. Panetta (https://scholar.google.com/scholar_case?case=10730664581031404447) (Bivens claim) In re Territo (https://scholar.google.com/scholar_case?case=18125308868589836596) Lebron v. Rumsfeld (https://scholar.google.com/scholar_case?case=10647104112426887557) (Wilkinson) and Al Shimari v. CACI Premier Tech. (https://scholar.google.com/scholar_case?case=8123144860034346802) (the Abu Ghraib case) United States v. Verdugo-Urquidez (https://scholar.google.com/scholar_case?case=10167007390100843851) David Frum, How to Build an Autocracy (https://www.theatlantic.com/magazine/archive/2017/03/how-to-build-an-autocracy/513872/) Special Guest: Steve Vladeck.
Just Christian and Joe talking a little about the outrageous first week of the new administration (refugees, emoluments, Russia, and more) and then opening up the mailbag. Nixonian firings, self-driving cars, and more. No other show notes this week!
Mike Madison is back to talk with us about knowledge commons, institutions, open-source software, citizen science, and the the basic problem of understanding how we cooperate. This show’s links: Mike Madison’s website (http://madisonian.net/home/), writing (http://madisonian.net/home/?page_id=85), and blog (http://madisonian.net) Oral Argument 90: We Are a Nation of Time-Shifters? (http://oralargument.org/90) Michael Madison, Information Abundance and Knowledge Commons (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2867578) About the institutional analysis and development framework (https://en.wikipedia.org/wiki/Institutional_analysis_and_development_framework) Elinor Ostrom, The Institutional Analysis and Development Framework and the Commons (http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3170&context=clr) Governing Knowledge Commons (http://knowledge-commons.net/publications/gkc/) (Brett Frischmann, Michael Madison, and Katherine Strandburg, eds.) The Knowlege Commons Research Framework (http://knowledge-commons.net/publications/gkc/research-framework/) Workshop on Governing the Knowledge Commons (http://knowledge-commons.net) Christine Borgman, Big Data, Little Data, No Data (https://mitpress.mit.edu/big-data-little-data-no-data) Matthys Levy, [Why Buildings Fall Down: How Structures Fail][levy] [levy]: https://www.amazon.com/Why-Buildings-Fall-Down-Structures/dp/039331152X Special Guest: Mike Madison.
Jeremy Sheff joins us to discuss a successful project to create a free and open Property Law casebook. Students of the world unite! You have only your restrictive licenses to lose. (Jeremy worked on this project with the incomparable Stephen Clowney, James Grimmelmann, Michael Grynberg, and Rebecca Tushnet.) This show’s links: Jeremy Sheff’s faculty profile (http://www.stjohns.edu/academics/bio/jeremy-sheff), website (https://jeremysheff.com), and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=589465) Open Source Property: A Free Casebook (https://opensourceproperty.org) Oral Argument 20: Twelve Billion Dollars (http://oralargument.org/20) (the one about casebooks) Special Guest: Jeremy Sheff.
Home for the holidays, back in Oral Argument World Headquarters, with property, land use, and local government law scholar Nestor Davidson. We discuss the fascinating, important, and under-theorized world of the thousands of local “administrative states” that shape our everyday lives. This show’s links: Nestor Davidson’s faculty profile (http://www.fordham.edu/info/23127/nestor_m_davidson) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=479785) Oral Argument 23: Rex Sunstein (http://oralargument.org/23) (guest Ethan Leib) (discussing Nestor Davidson and Ethan Leib, Regleprudence – at OIRA and Beyond (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2442413)) Nestor Davidson, Localist Administrative Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2867595) N.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene (http://www.nycourts.gov/ctapps/Decisions/2014/Jun14/134opn14-Decision.pdf) Kosalka v. Town of Georgetown (https://scholar.google.com/scholar_case?case=13209939354817730536) Aaron Saiger, Local Government as a Choice of Agency Forum (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802646) Carol Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy (http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2832&context=fss_papers) Special Guest: Nestor Davidson.
In our remote recording location and with returning election-law expert Lori Ringhand, we talk about the election. The electoral college, the moral and legal roles of electors, disputed elections in the House, crises, civil wars. Oh my. (Back in OA World Headquarters for next week’s show.) This show’s links: Lori Ringhand’s faculty profile (http://www.law.uga.edu/profile/lori-ringhand) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414) The Twelfth Amendment to the U.S. Constitution (http://avalon.law.yale.edu/18th_century/amend1.asp#12) (including a link to some superseding language of the Twentieth Amendment) Alexander Hamilton, Federalist No. 68 (http://avalon.law.yale.edu/18th_century/fed68.asp) Rick Hasen’s link to California’s brief against unbinding California’s Electors (http://electionlawblog.org/?p=89979) Geoffrey Stone, Electors Against Trump Are Faithful Not Faithless (http://time.com/4597387/faithless-electors-donald-trump/) Lawrence Lessig, The Constitution lets the electoral college choose the winner. They should choose Clinton. (https://www.washingtonpost.com/opinions/the-constitution-lets-the-electoral-college-choose-the-winner-they-should-choose-clinton/2016/11/24/0f431828-b0f7-11e6-8616-52b15787add0_story.html?utm_term=.a63723e54c11); Orin Kerr, The Electoral College Shouldn’t Choose Clinton: A Response to Lessig (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/25/the-electoral-college-shouldnt-choose-clinton-a-response-to-lessig/?utm_term=.e20924ee8ab4); Lawrence Lessig, A Response to Professor Kerr (https://medium.com/equal-citizens/a-response-to-professor-kerr-657e3d9147d2#.320laj58w); Orin Kerr, A Reply to Professor Lessig on the Electoral College (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/a-reply-to-professor-lessig-on-the-electoral-college/?utm_term=.3016b02fb393) Rick Hasen, Lessig Urges Faithless Electors Vote for Clinton, Pointing to Popular Vote in a Contest Not Based on Popular Vote (https://electionlawblog.org/?p=89486); Lawrence Lessig, Rick Hasen: “But Not to Ignore It…”: What Is “It”? (https://medium.com/equal-citizens/rick-hasen-but-not-to-ignore-it-what-is-it-59aaf4f0f0a3#.fxivalmbe); Mike Parsons, On “Hamilton Electors” and the Lessig/Hasen Debate (https://moderndemocracyblog.com/2016/12/03/on-hamilton-electors-and-the-lessighasen-debate/) Lawrence Lessig, The Equal Protection Argument Against “Winner Take All” in the Electoral College (http://billmoyers.com/story/equal-protection-argument-winner-take-electoral-college/); Lawrence Lessig, On the Equal Protect Clause Argument and the National Popular Vote Project (https://medium.com/equal-citizens/on-the-equal-protect-clause-argument-and-the-national-popular-vote-project-f4d75901151b#.kzkrq46f4) Dahlia Lithwick and David Cohen, Buck Up, Democrats, and Fight Like Republicans (http://www.nytimes.com/2016/12/14/opinion/buck-up-democrats-and-fight-like-republicans.html) David Corn, A Veteran Spy Has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump (http://www.motherjones.com/politics/2016/10/veteran-spy-gave-fbi-info-alleging-russian-operation-cultivate-donald-trump) John Broich, How US Journalists Normalized the Rise of Hitler and Mussolini (http://www.pri.org/stories/2016-12-13/how-us-journalists-normalized-rise-hitler-and-mussolini-0) (citing Dorothy Thompson’s 1935 observation: “No people ever recognize their dictator in advance.”) Special Guest: Lori Ringhand.
In an alternate studio, with alternate equipment and chairs, striving to get back in the groove, blowing out the rust, we make our return to the interweb-waves. (Please forgive some of the audio dips and quiet portions.) No particular agenda, but we wind up responding to some long-ago feedback about the stagecraft of judicial proceedings. This show’s links: First Mondays (http://www.firstmondays.fm) Oral Argument 79: He Said It Peabody Well (http://oralargument.org/79) The Supreme Court of the UK (https://www.supremecourt.uk/index.html) Jay Wexler’s SCOTUS Humor (http://jaywex.com/wordpress/scotus-humor/) Oral Argument 31: Knee Defender (http://oralargument.org/31) Plato, The Republic (http://classics.mit.edu/Plato/republic.html) and, yep, r/plato (https://www.reddit.com/r/Plato/) Texas v. Johnson (https://scholar.google.com/scholar_case?case=2084618710761560217)
And now for something completely different. Not being up to talking again about current events, we have a great chat with David Ziff, who has bravely and beautifully written in defense of the Bluebook. Once again, we do battle over legal citation. This show’s links: David Ziff’s faculty profile (http://www.law.washington.edu/Directory/Profile.aspx?ID=735) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1883094) Politically Re-Active, Facing the Future with CNN’s Jake Tapper (https://www.politicallyreactive.com) David Ziff, The Worst System of Citation Except for All the Others (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2862090) Oral Argument 91: Baby Blue (http://oralargument.org/91) (guest Chris Sprigman) and Oral Argument 88: The Blue Line (http://oralargument.org/88) Brian Garner, The Bluebook's 20th Edition Prompts Many Musings from Bryan Garner (http://www.abajournal.com/magazine/article/the_bluebooks_20th_edition_prompts_many_musings_from_bryan_garner/) Rockwell Graphic Systems v. DEV Industries (https://scholar.google.com/scholar_case?case=8375761695741205920) Special Guest: David Ziff.
The election. And then viewer mail on media for scholarship and ideas, suspense and emotional salience in judicial opinions, and a little more. This show’s links: Oral Argument 106: Legal Asteroid (http://oralargument.org/106) Robert Bolt, A Man for All Seasons (https://en.wikipedia.org/wiki/A_Man_for_All_Seasons) David Souter on the Danger of America’s “pervasive civic ignorance” (video) (https://www.youtube.com/watch?v=rWcVtWennr0) Oral Argument 105: Bismarck’s Raw Material (guest Tim Meyer) (http://oralargument.org/105) Oral Argument 112: Quasi-Narrative (guest Simon Stern) (http://oralargument.org/112) Popov v. Hayashi (http://news.findlaw.com/hdocs/docs/bonds/popovhayashi121802dec.pdf) Oyez page for NFIB v. Sebelius (https://www.oyez.org/cases/2011/11-393) (select Opinion Announcement, part 1, for the relevant portion of the hand-down) Oral Argument 113: The Entrails of Fowl (guest Charles Barzun) (http://oralargument.org/113) Paul Horwitz, On “The Troublesome Use of Photographs . . . and Other Images” in Federal Court Opinions (http://prawfsblawg.blogs.com/prawfsblawg/2016/10/on-the-troublesome-use-of-photographs-and-other-images-in-federal-court-opinions.html) Blackmun’s dissent in DeShaney v. Winnebago County Department of Social Services (https://www.law.cornell.edu/supremecourt/text/489/189#writing-USSC_CR_0489_0189_ZD1) Jamal Greene, Pathetic Arguments in Constitutional Law (http://columbialawreview.org/wp-content/uploads/2016/04/Greene-J..pdf) The Oral Argument Index (http://www.hydratext.com/oralargumentindex/) David Ziff, The Worst System of Citation Except for All the Others (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2862090)
We’ve been asking for a true originalist to take us to the woodshed for all our prior doubts and dismissiveness of originalism as a method of interpretation. Enter Will Baude. This show’s links: William Baude’s faculty profile (http://www.law.uchicago.edu/faculty/baude) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=398074) About Ben Linus (https://en.wikipedia.org/wiki/Ben_Linus) First Mondays (http://www.firstmondays.fm) Legal Theory 101 (http://www.hydratext.com/legal-theory-101/) (and corresponding blog post (http://www.hydratext.com/blog/2016/11/2/legal-theory-101)) William Baude and Stephen Sachs, Originalism’s Bite (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2851986) William Baude and Stephen Sachs, The Law of Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2783398) William Baude, Is Originalism Our Law? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2672631) Oral Argument 113: The Entrails of Fowl (http://oralargument.org/113) (guest Charles Barzun) Lawrence Solum, Semantic Originalism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244) Stephen Sachs, Originalism as a Theory of Legal Change (http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6059&context=faculty_scholarship) Richard Re, Promising the Constitution (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1230&context=nulr) Two debates about interpretation between Justices Breyer and Scalia: Annenberg Classroom (http://www.annenbergclassroom.org/page/a-conversation-on-the-constitution-judicial-interpretation) and a joint Federalist Society and ACS event (https://www.youtube.com/watch?v=_4n8gOUzZ8I) Richard Posner, Supreme Court Breakfast Table Entry 27: Broad Interpretations (http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2016/supreme_court_breakfast_table_for_june_2016/richard_posner_clarifies_his_views_on_the_constitution.html) Radiolab Presents: More Perfect, The Political Thicket (http://www.wnyc.org/story/the-political-thicket) Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention (https://www.amazon.com/Madisons-Hand-Revising-Constitutional-Convention/dp/0674055276); see also a conversation with Bilder at the National Constitution Center (https://www.c-span.org/video/?401572-3/madisons-hand) Special Guest: William Baude.
We made a return to the annual Tech Law Institute meeting in Atlanta and recorded a live episode about self-driving cars. We talked optimism, pessimism, political valence, regulatory challenges, federalism, trolley problems, and more.
This show’s links:
- Oral Argument 80: We’ll Do It LIVE!
- NHTSA, Federal Automated Vehicles Policy
- RAND, Autonomous Vehicle Technology: A Guide for Policymakers
- Duncan Black, some posts on self-driving cars: Not Gonna Work, No One Will Listen to Me, Spot the Key Phrase, "the revolutionary transportation technology”….
- Chris Martin and Joe Ryan, Super-Cheap Driverless Cabs to Kick Mass Transit to the Curb
- Tesla, All Tesla Cars Being Produced Now Have Full Self-Driving Hardware (announcement includes a vide demonstration)
- About Tesla’s Autopilot feature (also Tesla’s page on Autopilot)
- Alex Davies, Everyone Wants a Level 5 Self-Driving Car – Here’s What That Means
- Oral Argument 102: Precautionary Federalism (guest Sarah Light)
- Michael Dorf, Should Self-Driving Cars Be Mandatory?
- Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
- Oral Argument 70: No Drones in the Park (guest Frank Pasquale)
- About trolley problems
- Megan Barber, Who Should Driverless Cars Save: Pedestrians or Passengers?
- Frank Pasquale, Get off the Trolley Problem
- Jules Coleman and William Holahan, Review of Guido Calabresi and Philip Bobbitt’s Tragic Choices
Causation and responsibility are interrelated, crucial, and yet puzzling concepts in law. With tort scholar Shahar Dillbary, we explore situations in which spectators “cause” accidents in a drag race that they merely witness and in which the more tortfeasors there are, the better. Also, burning Christian’s car and an update on Joe’s recent cold.
This show’s links:
- Shahar Dillbary’s faculty profile and writing
- The Election Profit-Makers Podcast
- Shahar Dillbary, Causation Actually
- About the Learned Hand formula for negligence
- Shahar Dillbary, Tortfest
Special Guest: Shahar Dillbary.
Is originalism required by our law? We chat with Charles Barzun about his critique of the inclusive originalists, the new movement to claim that an originalist interpretive method is not only a good choice among possible methods but is the method which is mandated by a positivist approach to our law.
This show’s links:
- Charles Barzun’s faculty profile and writing
- Charles Barzun, The Positive U-Turn
- William Baude and Stephen Sachs, The Law of Interpretation
- William Baude, Is Originalism Our Law?
- Oral Argument 98: T3 Jedi (guests Jeremy Kessler and David Pozen)
- Scott Shapiro, Legality (Amazon and Google Books)
- Brown v. Board of Education; Jack Balkin and Bruce Ackerman (eds.), What Brown v. Board of Education Should Have Said
- Charles Barzun, Inside/Out: Beyond the Internal/External Distinction in Legal Scholarship
- Oral Argument 77: Jackasses Are People Too (guest Adam Kolber)
Special Guest: Charles Barzun.
Is legal writing narrative? How about judgments, appeals, testimony? We talk with Simon Stern about narrative and its techniques and effects, suspense, dicta, authorial purposes, a crazy idea for a novel, mathematical proofs, and more.
This show’s links:
- Simon Stern’s faculty profile and writing
- Simon Stern, Narrative in the Legal Text: Judicial Opinions and Their Narratives
- William Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Thing (Simon Stern, ed.); Simon’s introduction to the volume
- William Brewer and Edward Lichtenstein, Event Schemas, Story Schemas, and Story Grammars
- About the Paradox of Suspense
- Jonathan D. Leavitt et al., Story Spoilers Don’t Spoil Stories; Jonathan D. Leavitt et al., The Fluency of Spoilers: Why Giving Away Endings Improves Stories
- Circles Disturbed: The Interplay of Mathematics and Narrative (Apostolos Doxiadis and Barry Mazur, eds.) (Introduction to the book)
- Mitchel Lasser, The European Pasteurization of French Law
- Owen Barfield, This Ever Diverse Pair
- Wikipedia on epistolary novels
- Julie Schumacher, Dear Committee Members
- Oral Argument 48: Legal Truth (guest Lisa Kern Griffin)
Special Guest: Simon Stern.
The merits of going live-to-tape, RSS woes, podcasts, mailbag, judges and voting, decisionmaking machines, breaking the law by not facilitating others’ breaking the law, shipping Perceiving Law, cutting one’s favorite scene, a mysterious phone call.
This show’s links:
- Info about the Technology Law Institute seminar at which we will record an episode in front of a live studio audience
- Michael Clemente, A Reassessment of Common Law Protections for “Idiots”; Michael Clemente, Executing Idiots; Adam Liptak, Supreme Court to Consider Legal Standard Drawn from “Of Mice and Men”
- Christian Turner, Perceiving Law (ssrn or socarxiv)
- Joseph Miller, A Modest Proposal for Expediting Manuscript Selection at Less Prestigious Law Reviews (ssrn or digital commons)
After some goofy but needful pre-pre-roll and pre-post-roll, we take with Emily Sherwin about the law and equity distinction, its relation to rules and standards, its relation to candor, how what looked like a formal distinction had surprisingly functional effects, and how to get the most out of “good” rules.
This show’s links:
- Emily Sherwin’s faculty profile and writing
- Emily Sherwin, Equity and the Modern Mind
Special Guest: Emily Sherwin.
Administrative law expert Cathy Sharkey joins us to talk about conflicting judicial approach(es) to preemption and deference - and the web of institutions and decisionmaking that is modern lawmaking.
This show’s links:
- Cathy Sharkey’s faculty profile and writing
- Catherine Sharkey, The Administrative State and the Common Law: Regulatory Substitutes or Complements?
Special Guest: Catherine Sharkey.
Al Brophy returns to discuss, among other things, his new book on the connections between slavery, the academy, legal theory, and the judiciary.
This show’s links:
- Al Brophy’s faculty profile and writing
- Alfred Brophy, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War; see also Al’s blog post about the book and Google books page where you can browse a bit
- Oral Argument 76: Brutality (guest Al Brophy)
- Brooks Barnes and Cara Buckley, ‘The Birth of a Nation,’ Nate Parker’s Heralded Film, Is Now Cloaked in Controversy
- Birth of a Nation (2016) trailer
- State v. Mann
- Sally Green, State v. Mann Exhumed
- About Thomas R.R. Cobb
- Thomas Cobb, An Inquiry into the Law of Negro Slavery in the United States of America
- Daniel Victor, Bill O’Reilly Defends Comments About ‘Well Fed’ Slaves
- Sarah Roth, Gender and Race in Antebellum Popular Culture (browse here on Google Books); see also Al’s blog post
- Slavery’s Capitalism (Sven Beckert and Seth Rockman, eds.); see also Al’s blog post about the book and containing links)
- State v. Negro Will, Slave of James S. Battle
Special Guest: Al Brophy.
A special live-to-tape dig through the mailbag.
This show’s links:
- Christian’s Modern American Legal Theory audio downloads (paste this into your podcast app: http://www.hydratext.com/malt2016?format=rss)
- Episodes relevant to driverless cars: No Drones in the Park (guest Frank Pasquale and Sense-Think-Act (guest Ryan Calo)
- Jonathan Masur’s episode: All over the Gander
- SustainAtlanta
- Oral Argument 74: Minimum Curiosity (guest Amanda Frost)
- More Perfect (a side project of Radiolab)
- Oral Argument 77: Jackasses Are People Too (guest Adama Kolber)
- Oral Argument 44: Serial
- Sarah Koenig, Judge Orderns New Trial for Adnan Syed (containing a link and embedded version of the opinion and order granting Syed a new trial)
- Oral Argument 69: Contaminated Evidence (guest Brandon Garrett); Oral Argument 48: Legal Truth (guest Lisa Kern Griffin); Oral Argument 45: Sacrifice
- Kathryn Rubino, Did Georgia Just Poison Bar Exam Test Takers?; Oral Argument 61: Minimum Competence (guest Derek Muller)
- Oral Argument 21: Kind of a Hellscape (guest Brigham Daniels); Oral Argument 63: A Struggle with Every Single One (guest Jessica Owley)
Joe and Christian talk about this fraught election, focusing on RBG’s Trump remarks. Joe makes a confession.
This show’s links:
- ELB Podcast Episode 14: Erwin Chemerinsky, Did Justice Ginsburg Cross the Line?
- Dahlia Lithwick, Deciphering Justice
- Richard Hasen and Dahlia Lithwick, The Real Reason Why Judges Should Keep Quiet About Elections
- Mark Sherman, AP Interview: Ginsburg Doesn’t Want to Envision a Trump Win (“I don't want to think about that possibility, but if it should be, then everything is up for grabs.” Note that this is what Christian mistakenly remembered as “all bets are off.”)
- Adam Liptak, Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term (“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.” “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”)
- Nina Totenberg, Supreme Court Justice Ginsburg Apologizes for Trump Comments
- Learned Hand, The “Spirit of Liberty” Speech
- Oral Argument 61: Minimum Competence (guest Derek Muller)
With returning guest Tim Meyer, we talk about Brexit. Topics include referenda, democracy, comic book villains, the dynamics of union and separation, treaties and executive actions, Iceland, the roles of crisis and convenience. And a dramatic technical difficulty.
This show’s links:
- Tim Meyer’s faculty profile
- Oral Argument 2: Bust a Deal, Face the Wheel (guest Tim Meyer)
- About the treaties and protocols of the European Union
- Article 50 of the Lisbon Treaty (aka the Treaty on European Union)
- Laurence Helfer, Exiting Treaties
- Timothy Meyer, Power, Exit Costs, and Renegotiation in International Law
- Owen Bowcott, Theresa May Does Not Intend to Trigger Article 50 This Year, Court Told
- About the royal prerogative in the United Kingdom
- Scot Peterson, A Flexible Constitution Is Not Comforting in Troubled Times
- Iain Watson, EU Referendum Petition Signed by More than 2.5m
- About the US-Iraq Status of Forces Agreement
- About the UK Human Rights Act of 1998 (and its relation to the European Convention on Human Rights); Patrick Stewart, What Has the ECHR Ever Done for Us? (video); Charlie Peat, Theresa May Ditches Her Plans to Take Britain out of European Convention of Human Rights
- About the European Free Trade Association and the European Economic Area
- About Norway-EU Relations (including information about the Norwegian EU referenda)
- About the 2014 Swiss immigration referendeum
- About Otto von Bismarck
Special Guest: Tim Meyer.
Christian, Joe, and frequent co-host Sonja West dig into the mail and tweet bags and discuss nonsense, sense, and antisense. Topics include: Judge John Hodgman’s weighing in on speed trap law, podcast listening speeds, the Slate Supreme Court Breakfast Table, the insurable liability approach to the gun crisis, Joe sings (yes) a line from “The Externality Song” and (relatedly, obv) Hamilton vs. Upstream Color, price matching and the morality quiz, footnoting and in-text citation and madness, an argument over Guantanamo and rights, more on the culturally polarized gun debate and on rights generally, Posner’s skepticism of academia, and how things change and get better.
This show’s links:
- Sonja West’s faculty profile and writing
- Oral Argument 1: Send Joe to Prison (guest Sonja West)
- Judge John Hodgman on flashing lights to warn of speed traps
- Slate: The Supreme Court Breakfast Table
- Oral Argument 101: Tug of War
- Oral Argument 100: A Few Minutes in the Rear-View Mirror
- Oral Argument 96: Students as Means
- Kedar Bhatia, Footnotes in Supreme Court Opinions
- David Foster Wallace, Tense Present (an earlier version of Authority and American Usage in Consider the Lobster and Other Essays)
- The brief Christian helped with in Rasul v. Bush, making the Mathews v. Eldridge argument the Court wound up adopting in the simultaneously decided Hamdi v. Rumsfeld (see pp. 17-21)
- Sonja West, The Second Amendment Is Not Absolute
- The Protection of Lawful Commerce in Arms Act that confers immunity on gun manufacturers for most gun deaths; see also the wiki article on the act
- Oral Argument 102: Precautionary Federalism (guest Sarah Light)
- Dissent from denial of cert. in Stormans v. Wiesman
- Mark Graber, Alito (Religion) v. Alito (Abortion)
- Richard Posner, Entry 9: The Academy Is out of Its Depth
- Akhil Amar, Entry 10: Who Judges the Judges
- Richard Posner, Entry 11: The Immigration Decision Won’t Do Much
- Dawn Johnsen, Entry 12: How can a judge dismiss the importance of the Constitution?
- Richard Posner, Entry 27: Broad Interpretations
Special Guest: Sonja West.
We’re joined by a scholar of patent law, administrative law, and many other things, Jonathan Masur. Jonathan does not think the patent office has done a very good job of conducting cost-benefit analyses of various rules and procedures for issuing, maintaining, and challenging patents. Supposing patents should exist at all - can you tell who writes these show notes? - how should we account for the effects of the way we administer the system? These questions lead us to some basic conversation about cost-benefit analysis and and the value of patents. And we wind up asking simple questions, like what a cost is.
This show’s links:
- Jonathan Masur’s faculty profile and writing
- Jonathan Masur, CBA at the PTO
- Jonathan Masur and Eric Posner, Unquantified Benefits and the Problem of Regulation Under Uncertainty
- Cuozzo Speed Technologies v. Lee
- Patent and Trademark Office, Changes to Implement Inter Partes Review Proceedings, Post-Grant Review Proceedings (at 48720-48722)
- Patent and Trademark Office, Setting and Adjusting Patent Fees in accordance with Section 10 of the Leahy-Smith America Invents Act
- Paul Heald, A Transaction Cost Theory of Patent Law
Special Guest: Jonathan Masur.
Despite the fact that our show is pretty much the opposite of careful, we discuss precaution, regulation, and institutional choice with Sarah Light. The environmental and other effects of Uber and Lyft are complicated. If they’re very hard to calculate and understand, how should we regulate them to address their harms? With uncertain webs of causation, can the precautionary principle tell us not simply whether to regulate but who should regulate? Sarah thinks so.
This show’s links:
- Sarah Light's faculty profile and writing
- Sarah Light, Precautionary Federalism and the Sharing Economy
- Lisa Rayle, Susan Shaheen, Nelson Chan, Danielle Dai, and Robert Cervero, App-Based, On-Demand Ride Services: Comparing Taxi and Ridesourcing Trips and Use
- Shared-Use Mobility Center, Shared Mobility and the Transformation of Public Transit
- Cass Sunstein, Beyond the Precautionary Principle
- Cass Sunstein, Laws of Fear: Beyond the Precautionary Principle
- Robert Hahn and Cass Sunstein, The Precautionary Principle as a Basis for Decision Making
Special Guest: Sarah Light.
After the deadliest mass shooting in American history, we talk about the problem of gun violence and a possible way forward.
This show’s links:
- Christian Turner, The Freedom to Kill and Maim
- About guns and suicide (literature overview)
- Harvard Injury Control Research Center, Firearms Research (a collection of findings on gun ownership, use, injuries, risks, and more)
- Dylan Matthews, What No Politician Wants to Admit about Gun Control
- German Lopez, America’s Gun Problem, Explained
- Mark Follman, Gavin Aronson, and Deanna Pan, US Mass Shootings, 1982-2016: Data from Mother Jones' Investigation
In honor of our base 10 number system, we revert to type and have recorded a long, self-indulgent episode. We reflect on our show, respond to feedback, and wonder about law and legal academia. Also Joe’s travels and nonsense. Feedback includes the other side of the expedite problem, a morality quiz for Joe, the proper playback speed for this show, political processes in arrest and indictment, professionalism norms and racism, SSRN’s purchase by Elsevier, more on the Bluebook and its connection with the problems of legal knowledge creation, and what our jobs are and whether we should keep doing this show.
This show’s links:
- Christian Turner, Podcasts
- Oral Argument 0: Who Is Your Hero?
- Flyover Country
- Oral Argument 96: Students as Means
- Alvin Roth, Who Gets What - And Why
- Leegin Creative Leather Products v. PSKS; Klor’s v. Broadway-Hale Stores
- Oral Argument 99: Power (guest Lisa Heinzerling); Richard Posner, The Incoherence of Antonin Scalia
- On the bar exam: Oral Argument 61: Minimum Competence (guest Derek Muller); Oral Argument 62: Viewer Mail; Virginia Bar, Mandatory Dress Code
- Oral Argument 98: T3 Jedi (guests Jeremy Kessler and David Pozen)
- Michael Jensen's announcement of the sale of SSRN to Elsevier
- John Dupuis, Elsevier Buys SSRN: Another Sideshow or the Main Event?
- Paul Gowder, SSRN Has Been Captured by the Enemy of Open Knowledge
- Zenodo
- About arXiv
- Oral Argument 91: Baby Blue (guest Chris Sprigman)
- Oral Argument 12: Heart of Darkness
Joe is at the airport for a special pre-roll segment. Then we say hello to Lisa Heinzerling, administrative law expert (5:23). After a substantive and goofy discussion of legislation and regulation courses (6:29), we discuss the development of what Lisa calls “the power canons” resulting from recent decisions of the Supreme Court (10:39). If you’re Congress, how do you write a statute meant to solve problems that might evolve in type or degree? Do you have the power to do so, or are you limited to speaking to the here and now? Does the Supreme Court have the power to limit legislative and regulatory power in this way?
This show’s links:
- Lisa Heinzerling’s faculty profile (including links to all her scholarship)
- Lisa Heinzerling and Mark Tushnet, The Regulatory and Administrative State (a legislation and regulation casebook)
- Lisa Heinzerling, The Power Canons
- Oral Argument 23: Rex Sunstein? (guest Ethan Leib)
- City of Arlington v. FCC (C.J. Roberts in dissent: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”)
- NCTA v. Brand X
- Richard Posner, The Incoherence of Antonin Scalia
- Utility Air Regulatory Group v. EPA
- King v. Burwell
- Michigan v. EPA
- Lisa Heinzerling, Inside EPA: A Former Insider's Reflections on the Relationship Between the Obama EPA and the Obama White House
- Oral Argument 28: A Wonderful Catastrophe (our Erie show)
Special Guest: Lisa Heinzerling.
Like living things, legal theories are born, grow, change, and die. We are joined by Jeremy Kessler and David Pozen to discuss this life cycle and how it applies to some popular theories today, like originalism. We start by discussing what prescriptive legal theories are and how there was a move to transcend politics through process-based theories (3:23). Then: the theory of theories (9:31), the example of Brown v. Board, originalism, and brute political facts (20:17), a sociological story (25:10), the role of law schools and teaching in theory evolution (31:22), a discussion of trees, structure, and the role of higher order principles in law (37:50), theory change in private law (47:14), normative vs. descriptive theories of theories (54:05), and the internal and external approaches to originalism (1:04:27).
This show’s links:
- Jeremy Kessler’s faculty profile and writing
- David Pozen’s faculty profile and writing
- Jeremy Kessler and David Pozen, Working Themselves Impure: A Life-Cycle Theory of Legal Theories
- Oral Argument 97: Bonus
- Lawrence Solum, Kessler and Pozen on the Development of Normative Legal Theories
- Lawrence Solum, Legal Theory Lexicon: It Takes a Theory to Beat a Theory
- Daniel Carpenter, The Forging of Bureaucratic Autonomy:
Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928 - About Lévi-Strauss’s structuralism
- Javins v. First National Realty Corp.
- Jeffrey Gordon, The Empty Call for Benefit-Cost Analysis in Financial Regulation
- Guido Calabresi and Philip Bobbitt, Tragic Choices
- Open Science Collaboration, Estimating the Reproducibility of Psychological Science
- S.J. Gould and R.C. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm: A Critique of the Adaptationist Programme
- Lawrence Solum, Legal Theory Lexicon: Originalism and Legal Theory Lexicon: The New Originalism (each containing links and citations to many of the key works)
- Stephen Smith, Saving Originalism from Originalists
- An example of Larry Solum’s April Fools jokes
Special Guests: David Pozen and Jeremy Kessler.
When interpretations and rules depend on what’s true about the world (so, all the time), judges have to reach conclusions about those truths. But courts are not exactly like administrative agencies or legislatures, and they depend on adversarial parties to contest the truth. The Supreme Court, in particular, has come to rely on an elite bar to organize and present facts and studies. Having been through our usual vetting process of successfully appearing on the Colbert Report, Alli Larsen is ready for the big time and joins us to discuss how courts deal with the problem of factiness (which is the ivory tower version of truthiness). Alli’s appearance on the Colbert Report (01:02). The pronunciation of “amicus” (05:24). The main topic (10:36).
This show’s links:
- Alli Larsen’s faculty profile and writing
- Alli on the Colbert Report discussing amicus briefs and factfinding
- Before you write in, yes, the Dan Quayle story is false, but is that really the point?
- Oral Argument 74: Minimum Curiosity (guest Amanda Frost)
- Rowe v. Gibson
- Alli Orr Lasen, The Amicus Machine
- Alli Orr Larsen, The Trouble with Amicus Facts
- Alli Orr Larsen, Factual Precedents
- Amanda Frost, The Limits of Advocacy
- Brianne Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding
- Glossip v. Gross (death penalty)
- Brown v. Entertainment Merchants Association (violent video games)
- About the Brandeis Brief
- Gonzales v. Carhart
- Reva Siegel, The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument
- Gregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship
- Joseph Kearney and Thomas Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court
- William Eskridge Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation
Special Guest: Alli Larsen.
A show about, among other things, the morality of the law journal system. We start with Joe’s ailments and our scheduling issues. (You’re welcome; we know this is why people tune in.) Then a little about online review sessions, Slack, online classes, and video conferencing (2:32). Radiohead, Trump, and Ted Cruz (9:02). Next we open the mail and Twitter bags: Carl Malamud, the re-christened Indigo Book, and the possibility of a transcript of one of our episodes, all followed by Chris Walker’s posts on Prawfsblawg about student law journal podcasts (13:19). Next, listener Justin on laptops in classrooms and unconstitutional and re-constitutional statutes (17:38), Bunny on Oral ArgCon cosplay (25:27). And then this week’s main topic: The weird world of law review publishing and the moral aspects of our participation in it (28:23), including Joe’s description of the process, Christian’s calling Expresso “Espresso” (35:03), the transition to electronic submission and the rise of “expedites” (47:00). “Just tell me what your thesis is.” “Why don’t you tell me what it is?” and morality (52:54). Joe’s world (1:08:19). Christian’s world (1:13:53).
This show’s links:
- Joseph Miller, The Immorality of Requesting Expedited Review
- Slack
- Oral Argument 94: Bonus
- Zoom
- About Burn the Witch
- Andrew Sullivan, Democracies End When They Are Too Democratic; Jedediah Purdy, What Trump’s Rise Means for Democracy
- Richard Cytowic, Why Ted Cruz’s Facial Expression Make Me Uneasy
- Carl Malamud on Twitter
- Oral Argument 91: Baby Blue (guest Chris Sprigman)
- The Indigo Book (also available as a PDF)
- Chris Walker, Complete Junior Law Prawfs FAQs Series (and, particularly, What About Podcasts? and Rethinking Law Review Podcasts)
- Nathan H. Saunders, Student-Edited Law Reviews: Reflections and Responses of an Inmate
- Mark Twain, The War Prayer; a beautiful animated version
Do you have a right to film the police? Should people film the police? A lot of attention has been given to the use by police officers of body cameras (and dash cameras), but what about citizens’ filming arrests on the street? With Jocelyn Simonson, we explore the ways that the use of cameras both facilitates and is expression.
This show’s links:
- Jocelyn Simonson’s facult profile and writing
- Oral Argument 64: Protect and Serve (guest Seth Stoughton)
- Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police
- Timothy Williams, James Thomas, Samuel Jacoby, and Damien Cave, Police Body Cameras: What Do You See? (an interactive NY Times feature using videos created by Seth Stoughton); see also Jason Kottke’s link to this piece, which also features links to related ideas in film direction
- The Chicago Police Accountability Task Force (with links to the report); see also Monica Davey and Mitch Smith, Chicago Police Dept. Plagued by Systemic Racism, Task Force Finds
- ACLU of Illinois v. Alvarez (featuring a dissent by Judge Posner)
- Floyd v. City of New York (the stop and frisk case); see also p.597 of the same case for the judge’s quotations of police, some used in Jocelyn’s paper, evincing a “contempt and hostility . . . toward the local population”)
- This American Life 414: The Right to Remain Silent, Act Two (“For 17 months, New York police officer Adrian Schoolcraft recorded himself and his fellow officers on the job, including their supervisors ordering them to do all sorts of things that police aren't supposed to do.”)
- Jocelyn Simonson, Copwatching
- About the panopticon
- Seth Stoughton, Law Enforcement’s ‘Warrior’ Problem (read online here if you don’t want the PDF)
- About Stephen Colbert’s performance at the 2006 White House Correspondents’ Dinner (Here’s the video.)
- City of Houston v. Hill (“Why don’t you pick on somebody your own size?”)
- Fields v. City of Philadelphia (finding no First Amendment right to film police officers)
- Samuel Warren and and Louis Brandeis, The Right to Privacy
- Oral Argument 1: Send Joe to Prison (guest Sonja West)
- Sonja West, First Amendment Neighbors
- Sonja West, The Monster in the Courtroom
Special Guest: Jocelyn Simonson.
This is something different, a recording of a conversation we had for Christian’s Modern American Legal Theory class, which is being run online this semester. It’s a discussion of, among other things, the place of the public/private distinction in law and legal theory, critical legal studies, two-by-two boxes, and the vices and virtues of “universalization.” We had fun with it. So here’s a bonus episode.
This show’s links:
- Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction
- Christian Turner, Origins of the Public/Private Theory of Legal Systems
We respond to accumulated listener feedback in one unedited take.
This show’s links:
- This space intentionally left blank. No links this week.
We’re joined by tax scholar Daniel Hemel to discuss a puzzling problem. Why don’t presidents use their regulatory powers to affect tax law like they do to affect the law in many other areas? But before that, we talk about Christian’s birthday disappointment (0:01:15) and law reviews and the Bluebook (0:06:47). Then we talk Joe’s Oral Argument cruise proposal and segue to today’s topic (0:21:32), a president’s power to tax (0:27:19), an example of “carried interest” (the tax issue that flared up in the 2012 presidential campaign) (0:37:12), Daniel’s game-theoretic model and discussion of hawks, peacocks, debt ceilings, and presidential hand-offs (1:04:36).
This show’s links:
- Daniel Hemel’s faculty profile and writing
- Oral Argument 91: Baby Blue (guest Chris Sprigman)
- Orin Kerr, A Theory of Law
- Christopher Cotropia and James Gibson, The Upside of Intellectual Property's Downside
- Daniel Hemel, The President’s Power to Tax (forthcoming so watch this space)
- The Joint Committee on Taxation’s Bluebooks
- U.S. Treasury’s Greenbooks
- National Muffler Dealers Ass’n v. United States
- Mayo Foundation for Medical Education and Research v. United States
- 26 U.S.C. sec. 385
- Gregg Polsky, Can Treasury Overrule the Supreme Court?
- Victor Fleischer, Two and Twenty: Taxing Partnership Profits in Private Equity Funds
- Matthew Yglesias, Jeb Bush Wants You to Think He’d Raise Taxes on Hedge Fund Managers. He’d Actually Cut Them. (see the second section, Carried interest, explained)
- Victor Fleischer, Why Hedge Funds Don’t Worry About Carried Interest Tax Rules
- David Lebedoff, Why Doesn’t Obama End the Hedge Fund Tax Break?
- About the Pay-As-You-Go-Act of 2010
- About hawk-dove games
- About Margaret Chase Smith
Special Guest: Daniel Hemel.
In a world where a single power controlled the language of justice itself, one man (well, several people and a bunch of students, but anyway) rose up to … produce a free guide to the standardized practices of legal citation. Copyright scholar Chris Sprigman joins us to talk about two of his projects: Baby Blue, the open guide to legal citation, and the Restatement of Copyright. Our conversation: about Baby Blue (0:01:33), what in the Bluebook might be copyrightable (0:10:07), trademark and the two manuals’ names and colors (0:23:44), simplification of citation (0:39:43), and the Restatement of Copyright (0:56:52).
This show’s links:
- Chris Sprigman’s faculty profile, twitter, and writing
- Baby Blue: web page and PDF
- Oral Argument 88: The Blue Line
- The Bluebook
- Links to correspondence between lawyers for The Bluebook and others and the Baby Blue team
- Zotero and Papers
- The University of Chicago’s Citation Management for Law Students; Georgetown’s Bluebook Citation Resources and Detailed Feature Comparison
- Cory Doctorow, Five Years of Being Intimidated by the Harvard Bluebook’s Copyright Policies; FGBR, The Bluebook: A Plot Summary
- The Baby Blue public request for comments
- Subject matter of copyright: In general (s.102(b))
- Lotus v. Borland
- The University of Chicago Law Review, The Maroonbook
- McNeil Nutritionals v. Heartland Sweeteners (3d Cir. 2007) and later proceedings
- American Law Institute, Restatement of Copyright
- About secondary liability for copyright infringement
- Cartoon Network v. CSC Holdings and Cablevision Systems (whether 1.2 seconds of buffering on a hard drive is a “fixation”)
Special Guest: Christopher Sprigman.
Our main topic is fair use, the engine of so much cultural reuse and advancement. We’re joined by one of the doctrine’s most interesting scholars, Mike Madison. But the conversation spans: Joe’s telecomm cursing issues (0:00:36), FBiPhones and the Apple-FBI imbroglio (0:09:26), and fair use (0:28:27), including discussion of Mike’s Big Idea of social practices (0:53:03), reverse engineering, parody, video tapes, and much more.
This show’s links:
- Mike Madison’s website, writing, and blog
- FCC v. Pacifica Foundation
- FCC v. Fox (Fox II) (containing a link to Fox I)
- This American Life 267: Propriety (It’s all good, but the discussion of the legal issue in Fox is at about 19:15.)
- Amy Davidson, The Dangerous All Writs Act Precedent in the Apple Encryption Case
- John Gruber, The Next Step in iPhone Impregnability
- Oral Argument 80: We’ll Do It LIVE!
- Oral Argument 42: Shotgun Aphasia (guest Orin Kerr)
- Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment
- Apple’s motion to vacate the order to assist the FBI
- Riley v. California (and see Orin Kerr’s post about the case shortly after it was decided
- About Fair Use Week
- Ty v. Publications Int’l (Judge Posner, giving an explanation of market substitution and fair use); see also Richard Posner, When Is Parody Fair Use?
- Suntrust Bank v. Houghton Mifflin Co.
- Key, lower-court cases deciding whether university course packets qualify for fair use protection: Basic Books Inc. v. Kinko’s Graphics Corp., Princeton Univ. v. Michigan Document Services, and, most recently, Cambridge University Press v. Patton
- David Fagundes, Market Harm, Market Help, and Fair Use
- Kickstarter page for Star Trek: Axanar, an independent Star Trek film (includes the twenty-minute video Prelude to Axanar)
- Ryan Reed, Crowdfunded 'Star Trek' Movie Facing Copyright Infringement Lawsuit; Eriq Gardner, 'Star Trek' Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court
- See also the unrelated and rather amazing Star Trek New Voyages, a nonprofit web series; and Paul Post, A ‘Star Trek’ Dream, Spread From Upstate New York
- A googol
- Statement of the Librarian of Congress Relating to Section 1201 Rulemaking; about anti-circumvention exemptions
- Electronic Frontier Foundation, Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses
- Michael Madison, A Pattern-Oriented Approach to Fair Use
- Sony Corp. v. Universal City Studios
- Joel Hruska, How Sony’s Betamax Made YouTube and Twitch Possible
- Sega v. Accolade
- Frank Pasquale, Toward an Ecology of Intellectual Property: Lessons from Environmental Ecology for Valuing Copyright’s Commons
- Randy Picker, Closing the Xbox
- Sony Computer Entertainment v. Connectix Corp.
- MGM v. Grokster
- Jonathan Zittrain, The Generative Internet
- Horace Dediu, Seeing What’s Next (featuring a wonderful graph showing the adoption rates of various technologies, including the VCR); see also Derek Thompson, The 100-Year March of Technology in One Graph
- Eduardo Peñalver and Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (see also this article-length treatment)
- Eben Moglen, Freeing the Mind: Free Software and the Death of Proprietary Culture (“It is wrong to ask, ‘What is the incentive for people to create?’ It's an emergent property of connected human minds that they do create.”)
- Jennifer Rothman, The Questionable Use of Custom in Intellectual Property
- Michael Madison, Madisonian Fair Use
Special Guest: Mike Madison.
This week we tackle the simple and uncontroversial topic of education funding with Josh Weishart. We plumb the depths of equity, equality, luck, adequacy, and sufficiency. Legislatures vs. courts, duties and immunities. Luckily Josh saves us from our usual inadequacy.
This show’s links:
- Josh Weishart’s faculty profile and writing
- Amy Piller, I’m a New York City school administrator. Here’s how segregation lives on.
- Joshua Weishart, Transcending Equality Versus Adequacy
- San Antonio Independent School District v. Rodriguez
- About John Rawls’ Difference Principle
- Elizabeth Anderson, What Is the Point of Equality?
- Debra Satz, Equality, Adequacy, and Educational Policy
- Gannon v. State; and a summary of school finance litigation in New Jersey
- Mark Kelman and Gillian Lester, Jumping the Queue
- Joshua Weishart, Reconstituting the Right to Education
- Christian Turner, Origins of the Public/Private Theory of Legal Systems
- About Hohfeld
- Scott Bauries, State Constitutions and Individual Rights: Conceptual Convergence in School Finance Litigation; Scott Bauries, Is There an Elephant in the Room?: Judicial Review of Educational Adequacy and the Separation of Powers in State Constitutions
Special Guest: Joshua Weishart.
We record live at the University of Georgia School of Law at the invitation of the Georgia Law Review. The main topic is law journals, but we also give an update on Christian’s crumbling infrastructure, talk about gravitational waves, and introduce a new and complete system of citation.
This show’s links:
- Baby Blue: web page and PDF
- The Bluebook
- David Post, The New (and Much Improved) ‘Bluebook’ Caught in the Copyright Cross-Hairs
- Links to correspondence between lawyers for The Bluebook and others and the Baby Blue team
- Oral Argument 73: Looking for the Splines
- B.P. Abbott et al. (LIGO Scientific Collaboration and Virgo Collaboration), Observation of Gravitational Waves from a Binary Black Hole Merger (and see the article and video at the Times: Dennis Overbye, Gravitational Waves Detected, Confirming Einstein’s Theory)
- David Foster Wallace, Tense Present (an earlier version of Authority and American Usage in Consider the Lobster and Other Essays)
- Robot or Not
- The Oyez podcast feed for 2015 Supreme Court oral argument and the collection of Oyez feeds in iTunes
Joined in the studio by IP scholar Mark McKenna, yielding a two to one ratio of IP to non-IP people at headquarters, we discuss: the dilapidated state of headquarters (0:00), computers in the classroom and the first installment of Joe’s Quandary (6:11), topics we do not yet but one day will discuss and the topic for our upcoming live show (15:25), the speech implications of the revocation of trademark registration as with the Washington football team (20:12), and Knitting with Joe and one other bit of feedback (1:20:15).
This show’s links:
- Mark McKenna’s faculty profile and writing
- The Clear Sky Chart forecast for Athens, Georgia, containing explanations of transparency and seeing
- Dan Rockmore, The Case for Banning Laptops in the Classroom
- Clay Shirky, Why I Just Asked My Students To Put Their Laptops Away
- Pam Mueller and Daniel Oppenheimer, The Pen Is Mightier Than the Keyboard: Advantages of Longhand Over Laptop Note Taking
- Anne Curzan, Why I’m Asking You Not to Use Laptops
- Rebecca Schuman, In Defense of Laptops in the Classroom
- Oral Argument 71: Rolex Tube Socks (guest Mark McKenna)
- Mark McKenna, Trademark Year in Review
- In re Simon Shiao Tam
- Pro-Football, Inc. v. Blackhorse
- Amicus: The Case of the Missing Constitutional Violation
- Christine Haight Farley and Robert Tsai, The First Amendment and the Redskins’ Trademark, Part II: A Shot Across the Bow from the Federal Circuit (also containing a link to part one)
- Christine Haight Farley, Registering Offense: The Prohibition of Slurs as Trademarks
- Lilit Voskanyan, The Trademark Principal Register as a Nonpublic Forum
- Theodore Davis, Registration of Scandalous, Immoral, and Disparaging Matter Under Section 2(a) of the Lanham Act: Can One Man's Vulgarity Be Another's Registered Trademark?
- The National Speed Trap Exchange
Special Guest: Mark McKenna.
Joe shook off the plague and won a major prize all in one week. In celebration, we debate and discuss the lottery, choosing numbers, and the endowment “effect.” Into the mailbag we go and discuss our Speluncean episodes, an executioner’s privilege, robotic burritos and sandwiches, engineering happiness and social welfare functions, school funding, freedom, bro country, speed trap brief return, Canadian real estate as political barometer, the rougiest judge, knitting, and the Re-Framing.
This show’s links:
- Gregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship
- Oral Argument Hymn 1 and Hymn 2
- Regina v. Dudley and Stephens (and more about the case)
- Robot or Not burritos
- Christian List, Social Choice Theory (in the Stanford Encyclopedia of Philosophy)
- Vox’s The Weeds podcast
- Gannon v. State (and Trevor Graff and John Eligon, Court Orders Kansas Legislature to Spend More on Schools)
- San Antonio Independent School District v. Rodriguez
- About bro country
- Oral Argument 84: Felker’s Chickens (guest Steve Vladeck)
- Steve Vladeck, Vehicle Problems vs. Unusual Vehicles: The Supreme Court’s Bizarre Cert. Grant in Welch
- The Oyez podcast feed for 2015 Supreme Court oral argument and the collection of Oyez feeds in iTunes
- Josh Blackman and Howard Wasserman, The Process of Marriage Equality
It’s our second annual call-out show, and it’s a double-sized episode meant to last two weeks. We’re joined by listeners and previous guests who share with us the bits of culture — books, movies, and television — that have affected them and their experience of law and policy. Many things come up, but here’s the rundown:
- Listener Cameron, 0:00, Les Misérables
- Listener Michael, 26:11, JFK, the film
- Listener Bunny, 44:28, Star Trek: The Next Generation, The Measure of a Man
- Listener and co-host Sonja West, 1:11:26, The Feminine Mystique
- Listener and co-host Dave Fagundes, 1:41:25, A Wilderness of Error
- Mom, 2:10:14, Honor Council, The Insider, Serial
This show’s links:
- Oral Argument 44: Serial (A Double-Sized Episode with Many Special Guests)
- About Les Misérables (and a list of its various incarnations on film and stage)
- About the “Ban the Box” movement
- Hicks v. District of Columbia (in which Justice Douglas cites Les Mis in dissent); Harmelin v. Michigan (approving Michigan’s “three strikes” law); and the dissent from the denial of cert in Riggs v. California (in which the defendant’s third strike under California’s law was for stealing a bottle of vitamins); People v. Taylor (a state court appellate case in which the dissent begins: “In a scenario somewhat reminiscent of a late 20th Century, real life Les Miserables, a hungry, homeless man is sent away for 25 years to life for trying to break into a church so he could eat some food he thought the church would be glad for him to have.”)
- JFK, the 1991 film
- About the assassination of JFK
- Philosophy Bites: Quasi Cassam on Conspiracy Theories
- Hold Up!
- About the legislative impact of JFK
- About Making a Murderer
- Oral Argument 37: Hammer Blow (guest Michael Dorf)
- The Measure of a Man, an episode of Star Trek: The Next Generation; Picard’s argument for Data’s sentience (youtube)
- About positronic brains
- Richard Fisher, Is It OK to Torture or Murder a Robot
- Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
- About the technological singularity
- Her
- Ray Kurzweil, The Age of Spiritual Machines
- Betty Friedan, The Feminine Mystique
- Rostker v. Goldberg (upholding the male-only military draft)
- Jerome Wakefield, The Concept of Mental Disorder
- The oral argument in Lawrence v. Texas
- Amy Argetsinger, Robert Spitzer, Psychiatrist of Transformative Influence, Dies at 83
- Oral Argument 55: Cronut Lines (guest Dave Fagundes), discussing Waiting in Line: Norms, Markets, and the Law
- Lauren Davidson, Google’s New “Popular Times” Feature Could Kill the Queue
- Errol Morris, A Wilderness of Error (and more about Errol Morris)
- About Jeffrey MacDonald
- About the controversies over Fatal Vision
- The Thin Blue Line
- Serial, season one
- Janet Malcolm, The Journalist and the Murderer
- Daniel Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings (see also Rob Harris, The “Innocent Prisoner’s Dilemma”, an excellent NY Times video)
- Oral Argument 48: Legal Truth (guest Lisa Kern Griffin)
- The Insider
Special Guests: Dave Fagundes and Sonja West.
It’s a Christmas miracle! Steve Vladeck joins us again! He helps us understand how the Contract with America and a thicket of federal law have resulted in people remaining in prison even though their sentences are based on laws that have been found unconstitutional. Happy Holidays!
This show’s links:
- Steve Vladeck’s faculty profile and writing
- Steve Vladeck, How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)
- Teague v. Lane
- About the AEDPA
- Brown v. Allen (Justice Jackson in concurrence: “There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”)
- It was 100,000 cops on the beat, not 1 million. We regret the error. (1 million? Really?)
- About the Contract with America
- Tyler v. Cain
- Felker v. Turpin
- Johnson v. United States
- Steve Vladeck, The Johnson Retroactivity Circuit Split Plot Thickens…
- Steve Vladeck, Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?
- Steve’s (and others’) amicus brief in In re Butler on behalf of law professors
Special Guest: Steve Vladeck.
We’re back with a casual show that starts with Star Wars and criticisms of George Lucas. Then we move to the loneliness of authorship, models of law, movies that make us cry, and an appeal to the listeners to join us live on a future episode.
This show’s links:
- In Tribute to Marcia Lucas from The Secret History of Star Wars
- Original Trilogy (a fan website containing, among other things, information about fan edits)
- Jonathan Soble, Japan’s Top Court Upholds Law Requiring Spouses to Share Surname
- My Cousin Vinny
- Serial
- Miracle on 34th Street (1994)
- A.I.
- Battlestar Galactica
The second part of our conversation about the nature of law. Is it murder if, after your group of trapped spelunkers decides, unanimously, to draw lots and eat the loser, it does so?
This show’s links:
- Oral Argument 81: Hymn, Part 1
- Lon Fuller, The Case of the Speluncean Explorers ; see also the Wikipedia summary
- Oliver Wendell Holmes, The Path of the Law
- Ronald Dworkin, Law’s Empire
- Scott Shapiro, Legality; see also Scott Shapiro, The "Hart-Dworkin" Debate: A Short Guide for the Perplexed
First: oil can, a hymn, and feedback, including a discussion of the web and so-called social obligations. Is a hot dog a sandwich, and is it murder if your group of trapped spelunkers decides, unanimously, to draw lots and eat the loser? We end this part of the conversation (part two next episode and part three at a later date) there, just by asking the second question.
This show’s links:
- Vienna Teng, The Hymn of Acxiom (“Leave your life open. You don’t have to hide. . . . Let our formulas find your soul.”)
- About Acxiom
- Peter Bright, Bob Ross Coming Back to Twitch with Weekly Broadcasts and Annual Marathons
- Shia LaBeouf’s #ALLMYMOVIES
- Hold Up!
- Oral Argument 45: Sacrifice
- Sindell v. Abbott Laboratories (DES litigation imposing liability based on market share without regard to individual proof of causation)
- William Baude pronouncing his name in what is also a fascinating talk on originalism
- Oral Argument 80: We’ll Do It LIVE!
- About the Lynx browser
- Judge John Hodgman’s settled law and print
- Oral Argument 70: No Drones in the Park (guest Frank Pasquale)
- Oliver Wendell Holmes, The Path of the Law
We talk about the war between ad networks, data brokers, publishers, and consumers in front of a live studio audience. At the invitation of Paul Arne and the Tech Law section of the Georgia State Bar, we recorded this episode at the annual Tech Law Institute. But, of course, Big Data didn’t need this description to know that.
This show’s links:
- The Thrill of Victory and the Agony of Defeat
- The Bush-Kerry (not Bush-Gore as Christian had remembered) debate moment that seemed similar to Joe’s “Want some ranch?” utterance
- The Technology Law Section of the State Bar of Georgia
- We’ll do it live! (video, nsfw on account of language, anger, and Bill O’Reilly)
- The Oyez podcast feed for 2015 Supreme Court oral argument and the collection of Oyez feeds in iTunes
- The Narrowest Grounds blog, Why it Doesn't Matter if the Court's Opinions Are Originalist - A Comment on Baude on Originalism
- An interview with Justice Breyer in French
- Katie Benner and Sydney Ember, Enabling of Ad Blocking in Apple’s iOS 9 Prompts Backlash
- Some now older pieces by Alexis Madrigal still hold up: Reading the Privacy Policies You Encounter in a Year Would Take 76 Work Days and I'm Being Followed: How Google—and 104 Other Companies—Are Tracking Me on the Web
- FTC, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations For Businesses and Policymakers
- Douglas MacMilland and Elizabeth Dworkin, Drawbridge Hires Apple Ad Executive to Track Users Across Devices
- Matthew Panzarino, Apple’s Tim Cook Delivers Blistering Speech On Encryption, Privacy
- Matthew Panzarino, Apple Blows Up the Concept of a Privacy Policy
- Ben Thompson, Why Web Pages Suck
- Ben Thompson, Popping the Publishing Bubble
- Marco Arment: Introducing Peace, My Privacy-Focused iOS 9 Ad Blocker, Why Peace 1.0 Blocks The Deck Ads, Just Doesn’t Feel Good, Apple Refunding All Purchases of Peace
- Jack Balkin, Information Fiduciaries in the Digital Age (blog post) and Information Fiduciaries and the First Amendment (article)
- The proposed and not passed Do-Not-Track Online Act of 2013
- Sorrell v. IMS Health Inc.
- Christan Turner, The Failures of Freedom and The Information Law Crisis
- Jane Bambauer, Is Data Speech?
- Woodrow Hartzog, Website Design as Contract
- KidCo
When we do a Supreme Court term preview, we of course turn to Slate’s amazing Dahlia Lithwick, and then we proceed not to discuss the upcoming term. We begin with a whirlwind fourteen minutes of feedback on, among other things, an index for the show, the Cyberloquium, the potential for classes in our goofy style, the North Dakotan listening trend, listening while cooking, the possibility of a Dworkin episode, surname vs. last name, the use of “antepenultimate,” the dearth of recent speed trap law discussion, and a tease further discussion of law and morals. With Dahlia, we then talk about the Supreme Court’s new rule on standing in line for oral arguments, what it means when the Court does things that are not manifest in written opinions, the idea of Supreme Court previews, and looking ahead.
This show’s links:
- Dahlia Lithwick’s page, featuring her recent writing and podcasting, at Slate
- Amicus with Dahlia Lithwick
- Oral Argument and the Oral Argument Index
- The brand new Narrowest Grounds blog
- The Supreme Court’s new rule against “line standers” for members of the Supreme Court bar; Oral Argument 55: Cronut Lines (guest Dave Fagundes)
- Joan Biskupic, Janet Roberts and John Shiffman, At America’s Court of Last Resort, a Handful of Lawyers Now Dominates the Docket
- The Court’s new repository of PDFs of its web citations and a page featuring samples of the way it will highlight post-hand-down revisions of its opinions
- Justice Breyer on The Late Show with Stephen Colbert
- A Conversation with Elena Kagan
- Oyez, which hosts audio and (interactive) transcripts of decision announcements as well as oral arguments
- Oyez’s audio for Glossip v. Gross
- Oral Argument 22: Nine Brains in a Vat (guest Dahlia Lithwick), talking about hand-down days
- Lani Guinier, Supreme Cout 2007 Term Foreword: Demosprudence Through Dissent
- Jill Duffy and Elizabeth Lambert, Dissents from the Bench: A Compilation of Oral Dissents by U.S. Supreme Court Justices (containing a list of all dissents from the bench since 1969 and updated through summer 2014)
- William Blake and Hans Hacker, 'The Brooding Spirit of the Law': Supreme Court Justices Reading Dissents from the Bench
- Supreme Court Opinion Announcements: An Underutilized Resource (noting Justice Stevens’ oral dissent in Citizens United replaced a comparison between “Tokyo Rose” and “Allied commanders” to one between “Tokyo Rose” and “General MacArthur”)
- Dahlia Lithwick and Mark Joseph Stern, The Supreme Court’s Most Important Cases of the New Term
- SCOTUSblog page for Evenwel v. Abbott, the new one-person, one-vote case
Special Guest: Dahlia Lithwick.
Feedback on “the Cyberloquium,” theme music, affirmative action, oral arguments, podcast apps, Scalia’s opinion announcement in Glossip, the parliamentary system and complexity, postal banking, killer robots, villains and angels in history, and whether philosophy matters much in law.
This show’s links:
- Oral Argument 0: Who Is Your Hero?
- Amicus podcast: 2015 Term Preview
- SCOTUSblog’s page for Fisher v. UT Austin
- Oral Argument 27: My Favorite Case
- The Oyez page for Glossip v. Gross, containing Breyer’s announcement and Scalia’s response (linked at Part 4)
- Overcast
- Oral Argument 56: Cracking and Packing (guest Lori Ringhand)
- Mehrsa Baradaran, How the Other Half Banks; Nancy Folbre’s review for the NY Times; Oral Argument 9: Torches and Pitchforks
- Oral Argument 75: Air Gap (guest Mary Ellen O’Connell)
- Oral Argument 76: Brutality (guest Al Brophy)
- Oral Argument 77: Jackasses Are People Too (guest Adam Kolber)
Why take the time to write show notes if whether I write them is already determined? We’re joined by Adam Kolber to talk about free will, moral responsibility, determinism, and criminal law.
This show’s links:
- Adam Kolber’s faculty profile, writing, and blog
- Adam Kolber, Standing Upright: The Moral and Legal Standing of Humans and Other Apes
- Oral Argument 33: Other Minds (guest Matthew Liebman)
- Adam Kolber, Free Will as a Matter of Law (many of the other references in the show can be found here)
- Oral Argument 67: Monstrous Acts (guest Josh Lee)
Special Guest: Adam Kolber.
We start with, among other things, some decidedly negative feedback. But then we’re joined by the endlessly fascinating Al Brophy to discuss the history of slavery, Nat Turner’s rebellion and its aftermath, Thomas Cobb and pro- and anti-slavery intellectuals and judges, whether we should revere our Constitution, and what to do with symbols and monuments to the cause of slavery.
This show’s links:
- Al Brophy’s faculty profile and writing
- Jack Ewing, Volkswagen Says 11 Million Cars Worldwide Are Affected in Diesel Deception
- Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
- The 30th Annual Technology Law Institute, at which we will be recording an episode as part of the program
- Marco Arment, Just Doesn’t Feel Good, about pulling his top-ranked ad-blocking app from the App Store
- Oral Argument 74: Minimum Curiosity (guest Amanda Frost)
- Rick Hasen’s ELB Podcast and UCI Law Talks, a show featuring UC Irvine law professors
- Robert Cover, Justice Accused
- State v. Mann
- Harriet Beecher Stowe, Dred: A Tale of the Great Dismal Swamp
- Alfred Brophy, Thomas Ruffin: Of Moral Philosophy and Monuments
- Shawn Regan, DeChristopher Case Begs Question [sic]: What If Enviros Were Allowed to Bid on Oil Leases?
- About Thomas R.R. Cobb
- Thomas Cobb, An Inquiry into the Law of Negro Slavery in the United States of America
- Alfred Brophy, The Nat Turner Trials
- Blackhead Signpost Road (Google Maps); see also Al’s post with his own pictures and those of Henry Louis Gates Jr.
- Sean Wilentz, Constitutionally, Slavery Is No National Institution; see also David Waldstreicher, How the Constitution Was Indeed Pro-Slavery
- NFIB v. Sibelius (the Obamacare I case)
- Alfred Brophy, Is the Confederate Flag Unconstitutional?
- Tyler Hill, University to Retire “Racist” Portrait
Special Guest: Al Brophy.
We start with some feedback and thoughts on the Constitution, the Declaration of Independence, criminal law, and Christian’s brush with Upstream Color greatness. Also Joe’s thank-you notes. Then we’re joined by Mary Ellen O’Connell to talk about international law, weapons, hacking, Stuxnet, war, and killer robots. Mary Ellen maintains that the law we have is perfectly capable of dealing with what seem like new challenges.
This show’s links:
- Mary Ellen O’Connell’s faculty profile and writing
- Danielle Allen, Our Declaration
- The Declaration of Independence
- Upstream Color
- Dan Goodin, Meet “badBIOS,” the Mysterious Mac and PC Malware that Jumps Airgaps
- Oral Argument 70: No Drones in the Park (guest Frank Pasquale)
- Mary Ellen O’Connell, 21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, and WMDs
- About Stuxnet
- Chapter VII of the Charter of the United Nations, including Article 51, which Mary Ellen references
- Mary Ellen O’Connell, Banning Autonomous Killing
Special Guest: Mary Ellen O'Connell.
Should judges surf the web to scrutinize the truth of facts in front of them? With Amanda Frost, we discuss a recent case in which Judge Posner did just that. Some basic internet research cast serious doubt on a prison doctor’s medical opinion suggesting a prisoner did not need Zantac before meals to control a serious esophageal condition. While the websites Posner visited and cited did not control the outcome, they supported his conclusion that the evidence in the district court was insufficient to throw out the prisoner’s case.
This show’s links:
- Amanda Frost’s faculty profile and writing
- Rowe v. Gibson
- Coleen Barger, On the Internet Nobody Knows You’re a Judge
- Alli Orr Larsen, The Trouble with Amicus Facts; see also Alli Orr Larsen, Factual Precedents, which Christian must have had rolling around in his head somewhere
- Alli Orr Larsen on the Colbert Report discussing amicus briefs and factfinding
- Amanda Frost, The Limits of Advocacy
- Brianne Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding
- Zantac’s Comparison of OTC Heartburn Treatment Options
- Mitchell v. JCG Industries (dissent and concurrence in the denial of a rehearing and Posner’s defense of the court’s staff’s trying on protective gear to gauge the plausibility of the claim that it took more than fifteen minutes)
Special Guest: Amanda Frost.
We open the burgeoning mailbag. And oh what a bounty! Side A: 1. Georgia’s assertion of copyright over its annotated statutes. 2. Law school application, rankings, and preparation. 3. The utility for law of having a Ph.D. 4. Substantive due process and Lochner. 5. Would law school be better without the study of the Supreme Court or constitutional law? Side B: 6. Voting rights and proportional representation. 7. Whether we’ve had a fair discussion of the death penalty. 8. What makes legal writing good or bad? 9. Other podcasts. 10. Race and the law. 11. The utilitarian case for manual override of driverless cars. 12. Facebook’s ability to create “bad” desires and preferences. Drugs and entertainment. 13. The rogue Kentucky clerk and the difference between civil disobedience and sabotage or revolution.
This show’s links:
- Oral Argument on Twitter and on Facebook
- About Carl Malamud
- Georgia Accuses Public Records Activist of Information “Terrorism”
- Episode 68: Listen to My Full Point and Episode 12: Heart of Darkness
- Episode 62: Viewer Mail
- Episode 30: A Filled Milk Caste
- Episode 66: You’re Never Going to Get It All Done (guest Kareem Creighton) and Kareem Creighton’s tweet to us about this question
- Chris Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes
- Episode 56: Cracking and Packing (guest Lori Ringhand)
- Episode 67: Monstrous Acts (guest Josh Lee)
- Callins v. Collins (Scalia’s concurrence citing the brutality of a murder in a case in which the defendant was later proved innocent)
- Danielle Allen, Our Declaration; Robert Cover, Violence and the Word ; Jedediah Purdy, After Nature: A Politics for the Anthropocene
- Undisclosed: The State v. Adnan Syed, a podcast recommended to us
- Episode 69: Contaminated Evidence (guest Brandon Garrett); see also Episode 45: Sacrifice, Episode 64: Protect and Serve (guest Seth Stoughton)
- The Our National Conversation about Conversations about Race podcast
- Episode 70: No Drones in the Park (guest Frank Pasquale)
- Episode 72: The Guinea Pig Problem (guest Michelle Meyer)
- A youtube of David Foster Wallace talking about drugs and entertainment in Infinite Jest (2m23s)
- Anthony Kreis’s tweet about civil disobedience
With Michelle Meyer, a scholar of bioethics and law and a longtime listener of this show, we talk about human testing and Facebook. There’s a lot to talk about, but it doesn’t dissuade us from our customary, introductory nonsense, this time including a gift from listener Michelle, Star Wars, Joe’s mangling of last names, and Joe — and this actually happened — eating dog food. If you hate fun and want to get right to the colloquium part of America’s Faculty Colloquium, it starts a little after 23 minutes in. Should corporations be able to experiment on its customers and employees without their consent? Don’t they all do that, and haven’t they always? Don’t we all do that? Does it matter whether Facebook is more like a burrito stand or a utility? Mmmm… burritos.
This show’s links:
- Michelle Meyer’s web page, faculty profile, and writing
- America’s Team
- The excellent Phantom Menace poster
- Vindu Goel, Facebook Tinkers with Users’ Emotions in News Feed Experiment, Stirring Outcry
- Christian Sandvig, Karrie Karahalios, and Cedric Langbort, Uncovering Algorithms: Looking Inside the Facebook News Feed
- Michelle Meyer, Everything You Need to Know about Facebook’s Controversial Emotion Experiment (Wired)
- About social comparison theory and emotional contagion
- Adam Kramer, Jamie Guillory, and Jeffrey Hancock, Experimental Evidence of Massive-Scale Emotional Contagion Through Social Networks
- The Belmont Report
- The Common Rule
- Michelle Meyer and Christopher Chabris, Please, Corporations, Experiment on Us (N.Y. Times)
- James Grimmelmann, Illegal, Immoral, and Mood-Altering (Medium)
- Michelle Meyer et al., Misjudgements Will Drive Social Trials Underground (Nature)
- Michelle Meyer, Two Cheers for Corporate Experimentation: The A/B Illusion and the Virtues of Data-Driven Innovation
- Michele Meyer, More on the A/B Illusion: IRB Review, Debriefing, Power Asymmetries and a Challenge for Critics
Special Guest: Michelle Meyer.
With IP scholar Mark McKenna, we discuss a body of law we at least all agree should exist: trademark. Why is it essential? What are design patents? (Christian didn’t really know. But he opposes them nonetheless.) How do and should they differ from trademarks? Should there be a much shorter but partly functional protection for innovators’ identities as innovators? We discuss the example of Apple, Samsung, Android, and dilution.
This show’s links:
- Mark McKenna’s faculty profile and writing
- About the escutcheon
- About Joe Miller, the Alaskan politician
- The A.V. Club’s Podmass, featuring a write-up about our show by Dan Jakes!
- Mark McKenna, Trademark Year in Review
- Qualitex Co. v. Jacobson Prods. Co.
- Wal-Mart Stores v. Samara Brothers
- Traffix Devices v. Marketing Displays
- Mark McKenna, Confusion Isn’t Everything
- Apple v. Samsung (order denying attorneys’ fees but reviewing the substance of the trade dress claims)
- Sears, Roebuck and Co. v. Stiffel Company
- Compco Corp. v. Day-Brite Lighting, Inc.
- In re Webb (reversing a ruling that a prosthesis, unobservable once implanted, could not be the subject of a design patent)
- Christopher Jobson, Welcome to Dismaland: A First Look at Banksy’s New Art Exhibition Housed Inside a Dystopian Theme Park
- Mark McKenna and Katherine Strandburg, Progress and Competition in Design
- Steve Jobs’ slide containing smartphones as they existed at the moment (source article)
Special Guest: Mark McKenna.
Drones and robots are or soon will be watching you, driving you, delivering to you, and maybe even trying to kill you. They’re loud, nosy, deadly, useful, safe, and dangerous. There are many different kinds of them and many different kinds of us. What should we do when, say, a man shoots a camera-bearing drone out of the sky above his property? Or when a creditor remotely shuts down your car when you’re behind on your payments but, unfortunately, while you’re on the highway? For some answers and more questions, we chat with delightfully deep-thinking Frank Pasquale.
This show’s links:
- Frank Pasquale’s faculty profile and writing
- Frank Pasquale, The Black Box Society
- Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
- Robot or Not?, a podcast of one to two-minute episodes
- Jeff John Roberts, Man Arrested for Shooting $1,800 Drone Won’t Apologize, Cites Privacy
- DJI, drone purveyor, which company’s name Christian managed to mangle, Joe-style
- Michael Froomkin and Zak Colangelo, Self-Defense Against Robots and Drones
- Frank Pasquale, Air Traffic Control for Drones
- Jacque v. Sternberg Homes, Inc.
- Desnick v. ABC
- United States v. Causby
- Hinman v. Pacific Air Transport
- See, e.g., Field v. Google (on copyright claims against Google for search results)
- Margot Kaminsky, Drone Federalism: Civilian Drones and the Things They Carry
- Thomas Frey, 55 Jobs of the Future
- Timothy Lee, Amazon Has a Plan for Thousands of Drones to Fill the Sky
- Yoko Kubota, Google Reshoots Japan Views after Privacy Complaints
- The FAA’s interpretive rules for recreational drones (line-of-sight and less than 400 feet, among other restrictions) and proposed rules for commercial drones (including weight limitations, line-of-sight, daylight-only, less than 500 feet, and more)
- Foster v. Svenson (finding no statutory privacy right to prevent artistic show of photographs taken unsuspecting through open windows via telephoto lens)
- AP, Enrique Iglesias Recovering After Fingers Sliced at Concert, video
- Patrick Hubbard, 'Sophisticated Robots': Balancing Liability, Regulation, and Innovation
- 99% Invisible 170: Children of the Magenta (Automation Paradox, pt. 1); see also part 2
- Turn Your Key, Sir!
- Grégoire Chamayou, A Theory of the Drone
- Frank Pasquale, Do Corporations Enjoy a 2nd Amendment Right to Drones?
- Jathan Sadowski and Frank Pasquale, The Spectrum of Control: A Social Theory of the Smart City
- Jathan Sadowski and Frank Pasquale, Creditors Use New Devices to Put Squeeze on Debtors
- Dale Carrico, We Are the Killer Robots; see also Dale Carrico, Natality, Tech “Disruption,” and Killer Robots
- Mary Ellen O’Connell, 21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, and WMDs
- Samuel Bowles and Arjun Jayadev, One Nation Under Guard; see also Samuel Bowles and Arjun Jayadev, Garrison America
- Frank Pasquale and Glyn Cashwell, Four Futures of Legal Automation
Special Guest: Frank Pasquale.
Brandon Garrett is one of the leading scholars on the problem of getting it wrong in criminal cases. Eyewitnesses who believe they know what they do not know, suspects who confess to crimes they did not commit, and the actually guilty parties who go free when convict the innocent: why and how does this happen?
This show’s links:
- Brandon Garrett’s faculty profile, author page, and writing
- Hold Up!, the (probably) one-off movie podcast we recorded
- Oral Argument 44: Serial
- Brandon Garrett, The Banality of Wrongful Executions
- Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong
- Brandon Garrett, Contaminated Confessions Revisited
- About Elizabeth Loftus
- Oral Argument 48: Legal Truth (guest Lisa Kern Griffin), discussing Lisa Kern Griffin, Narrative, Truth, and Trial; see also links and discussion from Oral Argument 45: Sacrifice
- James Liebman et al., The Wrong Carlos, a fascinating website collecting photos, interviews, and other evidence concerning the conviction and execution of Carlos DeLuna, who was likely innocent
- This American Life, Confessions, Act One, an interview with Jim Trainum about botched confessions
- Benjamin Weiser, Settlement Is Approved in Central Park Jogger Case, but New York Deflects Blame
- National Research Council, Identifying the Culprit
- Alex Kozinski, Criminal Law 2.0
- About the Criminal Cases Review Commission
- Innocence Project at the UVA School of Law
Special Guest: Brandon Garrett.
Just Christian and Joe focusing on a few topics from listener feedback. Our discussion includes: BPA-free containers, Joe’s health, John Pfaff in the news on prison reform and mass incarceration, Pluto and seagulls, listener Anthony’s good news, the Church of Marijuana, religious exemptions, racist appointments, what “tuition” means, how to choose a law school, how to prepare for law school (we disagree), what law schools should be, and feedback we decide to delay.
This show’s links:
- Oral Argument 51: The Faucet (guest John Pfaff)
- German Lopez, Mass Incarceration in America, Explained in 28 Maps and Charts (vox.com)
- Oliver Roeder, Releasing Drug Offenders Won’t End Mass Incarceration (538.com)
- Oral Argument 6: Productive Thoughtlessness
- Emily Lakdawalla, First Look at New Horizons' Pluto and Charon images: “Baffling in a Very Interesting and Wonderful Way"
- The picture of the comet
- About Leviathan
- Monica Davey, A Church of Cannabis Tests Limits of Religious Law in Indiana
- Oral Argument 66: You’re Never Going to Get It All Done (guest Kareem Crayton)
- Oral Argument 12: Heart of Darkness (about the US News rankings)
- Alexia Brunet Marks and Scott Moss, What Makes a Law Student Succeed or Fail? A Longitudinal Study Correlating Law Student Applicant Data and Law School Outcomes
- Stanford Encyclopedia of Philosophy on Free Will and on Retributive Justice
We’re joined by long-time listener and federal public defender Josh Lee to discuss the death penalty. We talk about Josh’s practice, death row, the latest death penalty decision’s substance and tone, and whether the death penalty will last much longer.
This show’s links:
- About Josh Lee
- Amicus: The Term in Review, episode 23 of Dahlia Lithwick’s excellent Supreme Court podcast
- Oral Argument 66: You’re Never Going to Get It All Done
- Federal Public Defender Organization, Eastern District of Arkansas
- About the Antiterrorism and Effective Death Penalty Act of 1996
- Ake v. Oklahoma (guaranteeing a right to psychiatric exam to prepare a criminal defense); see also Ward v. State, an Arkansas Supreme Court decision noting the court’s belief that “a defendant's rights are adequately protected by an examination at the state hospital, an institution that has no part in the prosecution of criminals”
- ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
- Josh Lee, Determinism and the Death Penalty
- Williams v. Hobbs
- Glossip v. Gross
- Josh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy
- Josh Lee, Judicial Abolition from Below
- Bill Mears, Justice Breyer Robbed at Machete-Point During Caribbean Vacation
- Doug Berman, "Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska"
- Casetext
- Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights; see also Christopher McCrudden, Understanding Human Dignity (the introduction of which is here)
Special Guest: Josh Lee.
We talk this week about elections and markets for votes with election-law scholar Kareem Crayton. Calling in from Hong Kong, where the design of elections looms large, Kareem chats with us about what elections are meant to do, the private and public nature of the voting booth, the practical legal immunity of decisions made for illegitimate reasons, comparisons of elections and other markets for products, racism, the Voting Rights Act, and more. Is racism more like polio or high blood pressure?
This show’s links:
- Kareem Crayton’s writing
- Glossip v. Gross
- Michael Dorf, Evolving Standards of Decency that Mark the Progress of Maturing Justices
- Orin Kerr, Why the Late-Career Conversions at the Supreme Court on the Death Penalty?
- United States v. Quinones (Judge Rakoff’s district court opinion striking down the death penalty in 2002, later reversed)
- Josh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy
- Josh Lee, Determinism and the Death Penalty
- Josh Lee, Judicial Abolition from Below
- BBC, Hong Kong’s Democracy Debate (an explainer)
- Arizona State Legislature v. Arizona Independent Redistricting Comm’n
- Giles v. Harris
- Romer v. Evans
- Busbee v. Smith (a 1982 decision containing finding of fact 17, that a Georgia representative was a racist)
- Shelby County v. Holder
- Brief of Political Science and Law Professors as Amici Curiae in Shelby County
- Kareem Crayton, Five Justices, Section 4, and Three Ways Forward in Voting Rights
- Kareem Crayton, Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized Voting Studies in Voting Rights Enforcement
- Kareem Crayton, Take Down the Confederate Flag
Special Guest: Kareem Crayton.
Big week. Let’s just call this one our second annual Supreme Court round-up, where, naturally, we focus on only two cases: gay marriage and Obamacare II. It’s made awesome by our special guest, Steve Vladeck.
This show’s links:
- Steve Vladeck’s faculty profile and writing
- Oral Argument 22: Nine Brains in a Vat (guest Dahlia Lithwick)
- Obergefell v. Hodges
- Oral Argument 40: The Split Has Occurred (about Judge Sutton’s gay marriage opinion) and Oral Argument 32: Go Figure (guest Lori Ringhand) (about Judge Posner’s gay marriage opinion), both episodes containing ample links concerning the issue
- San Antonio Independent School District v. Rodriguez
- Oral Argument 30: A Filled Milk Caste, containing discussion and links concerning United States v. Carolene Products Co.
- Brown v. Board of Education; see also What Brown v. Board of Education Should Have Said (Jack Balkin, ed.)
- Town of Greece v. Galloway; Kimble v. Marvel Entertainment
- Reed v. Reed
- Boumediene v. Bush
- Lochner v. New York; Dred Scott v. Sanford
- King v. Burwell
- City of Arlington v. FCC, Roberts’ dissenting regarding the application of Chevron v. NRDC
- Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, one of the cases about “not less than seven days”
- Adam Zimmerman, Chevron after King v. Burwell (the comments to which feature thoughts from listener Asher)
- Shelby County v. Holder
- Steward Machine Co. v. Davis
Special Guest: Steve Vladeck.
We’re back. After an introductory, warm-up conversation about swearing (in which we do not swear) and travels, we talk with Seth Stoughton about policing in America. What should a police officer and a police force be? Warriors or guardians? Seth teaches us some history and shares his own experiences as a former police officer. Also how to pronounce Stoughton.
This show’s links:
- Seth Stoughton’s faculty profile and writing
- Seth Stoughton, Law Enforcement’s ‘Warrior’ Problem (read online here if you don’t want the PDF)
- Seth Stoughton, A Former Cop on What Went Wrong in McKinney
- Seth Stoughton, What a Police Expert Calls the Most Ignored Cause of Cop Violence
- Klein et al., The Good Stranger Frame for Police and Military Activities
- Final Report of the President’s Task Force on 21st Century Policing
- All Thing Considered, Police-Involved Shootings Highlight Problem With Law Enforcement 'Culture'
- Seth Stoughton, What Would a Better Ferguson Response Have Looked Like?
- U.S. Department of Justice, Investigation of the Ferguson Police Department
- This American Life, Right to Remain Silent; see also Graham Rayman, The NYPD Tapes: Inside Bed-Stuy’s 81st Precinct
- Jamelle Bouie, Criminal Neglect
Special Guest: Seth Stoughton.
Suppose you wanted to check out how our efforts to save endangered species are going. Our guest, Jessica Owley, tried to do that and to observe what is happening where habitat conservation plans have been put in place. Things didn’t go so well. We discuss the structure of the Endangered Species Act, snails, dams, the God Squad, “incidental take permits,” how it’s all supposed to work, and, mainly, how Jessica was stymied in her efforts to figure out how it actually is working. (Brought to you by coffee sent by listener Adam.)
This show’s links:
- Jessica Owley’s faculty profile and writing
- Jessica Owley, Keeping Track of Conservation
- About the Endangered Species Act, with links to the text of the act, other documents, and a video about the act; see also Wikipedia on the ESA
- Babbitt v. Sweet Home Chapter, Communities for Great Ore.
- Tennesse Valley Authority v. Hill
- More about the snail darter controversy
- About Habitat Conservation Plans (USFWS); see also Wikipedia on HCPs
- An example Habitat Conservation Plan at Stanford University
- About conservation easements
- Jessica Owley, Exacted Conservation Easements: Emerging Concerns with Enforcement
- The San Bruno Mountain Habitat Conservation Plan and related documents
- Lujan v. Defenders of Wildlife
Special Guest: Jessica Owley.
It’s just Joe and Christian this week, clearing out viewer mail. We discuss our show, Kerbal Space Program, the bar exam, Virginia’s bar exam dress code, follow-up on ExamSoft, licensing and control, probability, the Monty Hall problem, and being hit by meteors.
This show’s links:
- Kerbal Space Program (and see, e.g., this video tutorial by the Scott Manley)
- Temma Ehrenfeld, Should You Knit?
- Randall Munroe, Orbital Mechanics on xkcd.com
- David Letterman’s Viewer Mail and the Pyramid of Comedy
- Oral Argument 61: Minimum Competence
- Daniel Solove, The Multistate Bar Exam as a Theory of Law
- Virginia Board of Bar Examiners, Mandatory Dress Code (compare with the Georgia bar exam’s Dress Code)
- Nicholas L. Georgakopoulos, Visualizing Trials with Large DNA Databases
- Oral Argument 45: Sacrifice
- About the Monty Hall problem
Longtime listener, first time Oral Arguer Derek Muller joins us to talk about the bar exam, through issues particular (the great ExamSoft meltdown of 2014), large (the purpose and utility of the exam overall), and sartorial (Virginia). Joe makes a shocking confession.
This show’s links:
- Derek Muller’s faculty profile and writing
- The Virginia Board of Bar Examiners’ Mandatory Dress Code
- Derek Muller, Visualizing the Grim Final Numbers from the July 2014 Bar Exam
- National Conference of Bar Examiners, National Data for 2014 MBE and MPRE Administrations
- Reuters, U.S. States Extend Bar Exam Deadlines After Software Havoc
- Jerry Organ, What Might Have Contributed to an Historic Year-Over-Year Decline In the MBE Mean Scaled Score?
- Gary Rosin, Unpacking the Bar: Of Cut Scores, Competence, and Crucibles
- Oral Argument 12: Heart of Darkness
- Deborah Merritt, ExamSoft Update (including links to Merritt’s other posts on the topic)
- Karen Sloan, Software Maker Settles ‘Barmageddon’ Class Action for $2.1M
- Vikram Amar, Lower Bar Pass Rates in Some States Should Cause Us to Examine This Year’s Test, and the Bar Exam in General and Additional Thoughts (and Concerns) About the Low Bar Pass Rates in California and Elsewhere in 2014
- Derek Muller, Here We Go Again: February 2015 Bar Pass Rates Down over Last Year
- About the Daniel Webster Scholar Program and its curriculum
- Stephanie Clifford and James McKinley Jr., New York to Adopt a Uniform Bar Exam Used in 15 Other States
- Erwin Chemerinsky, It’s Time for California to Accept the Uniform Bar Exam
- About the Uniform Bar Examination
Special Guest: Derek Muller.
After fighting with Skype, Ann Bartow joins us to discuss her experience living, teaching, and researching law and especially IP law in China. Also: feedback, Kerbal Space Program, existential angst, and more.
This show’s links:
- Ann Bartow’s faculty profile and writing
- Kerbal Space Program
- The Philosophy Bites podcast
- Open Yale Courses, Phil 176: Death
- Renowned IP Scholar Ann Bartow to Lead Franklin Pierce Center for Intellectual Property at UNH Law
- Ann Bartow, Privacy Laws and Privacy Levers: Online Surveillance versus Economic Development in the People's Republic of China
- Lijia Zhang, China’s Death-Penalty Debate (noting the changing approach to the death penalty in China and the 2007 move by China’s Supreme Court to assert jurisdiction over death penalty appeals); see also Wikipedia on capital punishment in China (noting more details of the post-2007 appellate procedure)
- About Chinese patent law
- China’s IP-related laws and other information as collected by the World Intellectual Property Organization
- Jeffrey Podoshen, Materialism and Conspicuous Consumption in China
- China Economic Review, Chinese Shoppers Begin to Master the Art of Subtlety
- About WeChat
- China Law and Practice, Copyright Administration Gives in to Musicians
- China Retains on Foreign Film Quota (noting that, as of February 2014, the foreign film quota was thirty-four films per year)
- Eric Priest, Copyright Extremophiles: Do Creative Industries Thrive or Just Survive in China's High Piracy Environment?
Special Guest: Ann Bartow.
Friend of the show and “Freaks and Geeks” extra Sarah Schindler returns to join us live at Oral Argument World Headquarters to talk about the exclusion we impose not through law but through building and architecture. We make an outdoor party of it with very special guests Paul Heald, Jessica Owley, and Justin Steil. (With so many of us gathered around three microphones, forgive us for a little more unevenness in levels than usual.)
This show’s links:
- Sarah Schindler’s faculty profile and writing
- Oral Argument 4: Grow a Pear
- Sarah Schindler, Architectural Exclusion
- Our guest hosts: Paul Heald (Paul’s writing), Jessica Owley (Jesse’s writing), and Justin Steil (Justin’s writing)
- About Robert Moses and his low bridges
- Nicholas Blomley, Traffic Logic and Political Logic
- About NEPA and environmental impact statements
- Robin Malloy, Inclusion by Design, Thinking Beyond a Civil Rights Paradigm
- Washington v. Davis
- Benjamin Mueller, In Connecticut, Breaking a Barrier Between a Suburb and Public Housing
- Barton Hinkle, Zoning’s Racist Roots Still Bear Fruit (referencing, like Sarah’s article, the 1910 mayor of Baltimore’s support for zoning that would “quarantine” black residents in “isolated slums”)
- About the Edmund Pettus Bridge
- About public choice
- Links to audio and text of David Foster Wallace’s This Is Water
Special Guests: Jessica Owley, Paul Heald, and Sarah Schindler.
What kind of privacy do we want to have? What makes others’ knowledge about us turn from everyday acceptable to weird and creepy? Woody Hartzog talks with us about the difficulties of maintaining privacy, whatever it should be, online and in social networks. We’re used to the cheap obscurity and fleetingness of our physical lives, but it’s cheap and tempting to know more about others online than they’d like. Can we design platforms to deliver the individual obscurity we’ve enjoyed in the past? Conversation ranges between celebrities and privacy, searchability, giving up on hiding that we’re all gross and weird, our many identities, the problem of dumb teenagers, protected Twitter accounts, internet bad guys, and naked, dancing Buddhist monks.
This show’s links:
- Woody Hartzog’s faculty profile and writing
- Philosophy Bites, Shaun Nichols on Death and the Self
- Woodrow Hartzog, Chain-Link Confidentiality
- Joshua Fairfield, BitProperty
- About security through obscurity
- Woodrow Hartzog and Frederic Stutzman, Obscurity by Design
- Daniel Solve, A Taxonomy of Privacy
- David Brin, The Transparent Society
- Cass Sunstein, Republic.com
- About the narcissism of small differences
- Richard Posner, The Right of Privacy
- Neil Richards, Intellectual Privacy (the article) and Intellectual Privacy (the book)
- Library of Congress, Update on the Twitter Archive at the Library of Congress
- Twitter, About Public and Protected Tweets; see also Greg Kumparak, Twitter Bug Allowed Some Protected Accounts to Be Read by Unapproved Followers
- About Yik Yak
- Mike Isaac, A Look Behind the Snapchat Photo Leak Claims
- In the Matter of Red Zone Investment Group, Inc., an FTC case involving, among other things, a fake windows registration window
- Woodrow Hartzog, Website Design as Contract
- About the Whisper app
- About the Sears Holdings Management Corp. case before the FTC
Special Guest: Woodrow Hartzog.
We hereby deliver an evening episode comprising role-playing, word pictures, and other podcasting art forms to convey critical information on, among other miscellany: Christian’s week of broken things, follow-up on lines, math and the book of true reasons, Mark Lemley’s article on “faith-based IP,” imagining Benjamin Franklin’s lightning powered potato peeler, iPhone copycats, and, morality aside, the death penalty’s stupidity, and the measure of a civilization.
This show’s links:
- The Wirecutter and the Sweet Home
- Oral Argument 55: Cronut Lines
- The documentary about people competing to win a truck, Hands on a Hardbody
- Oral Argument 51: The Faucet (guest John Pfaff)
- Euclid’s Elements
- About Paul Erdős
- Mark Lemley, Faith-Based Intellectual Property
- Frank Michelman, Takings
- Mark Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights
- International News Service v. Associated Press
- SCOTUSblog on Glossip v. Gross
- Associated Press, Utah Brings Back Firing Squads as Lethal Injection Drugs Remain Scarce
- About Cameron Todd Willingham
- Oral Argument 45: Sacrifice
- About “death-qualified” juries
When you have election law and constitutional law scholar Lori Ringhand on your show, you start, of course, by talking about the problem with email, the uses of texting, and apps like Periscope. Lori thinks Christian should read more novels. Fueled by listener Bunny’s small-batch, home-roasted, fine coffee, we move on to the much easier topics of race, voting, and gerrymandering. What do you do when the Supreme Court’s color-blindness understanding of the Equal Protection Clause collides with the Voting Rights Act? And why do geographic voting districts with single winners make sense anyway? Voting’s hard to make fair amirite?
This show’s links:
- Lori Ringhand’s faculty profile and writing
- Periscope
- About Margaret Atwood’s Oryx and Crake
- Lori’s last appearance on the show
- The SCOTUSblog page for Arizona State Legislature v. Arizona Independent Redistricting Commission (which includes links to briefs and oral argument)
- Alabama Legislative Black Caucus v. Alabama
- About the Voting Rights Act, including a brief outline of its major provisions
- Shelby County v. Holder
- About cracking, packing, and other redistricting shenanigans; see also more on this in ProPublica’s Devil’s Dictionary
- About multiple-winner voting methods and single-winner voting methods (which distinction roughly tracks some of the issues we raised)
- Shaw v. Reno, which was followed by Miller v. Johnson
- Partisan gerrymandering cases: Davis v. Bandemer (1986), Vieth v. Jubelirer (2004), League of United Latin American Citizens v. Perry (2006)
- Christopher Elmendorf, Representation Reinforcement through Advisory Commissions: The Case of Election Law
- Links to the oral argument in the Arizona case
- Smiley v. Holm and Bush v. Gore (and it was Justice Rehnquist’s concurrence)
Special Guest: Lori Ringhand.
Why do people stand in line? Or is it “on line”? Of course it isn’t. But the question remains. We talk with Dave Fagundes, scholar of, among many other things, roller derby, who has written the cutting edge article on why we form lines even without laws requiring them. Discussion ranges from cronuts to rock bands to carpool lanes to phone apps.
This show’s links:
- Dave Fagundes’s faculty profile and writing
- The decision in Armstrong v. Exceptional Child Center and Steve Vladeck’s reaction, Steve’s having discussed this case in episode 38
- David Fagundes, Waiting in Line: Norms, Markets, and the Law
- Episodes 31 and 32, in which there are links and discussion concerning the “knee defender” controversy and airline seat reclining
- David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms
- A stachexchange thread about standing “in line” vs. “on line”
- The word “spendy” dates from 1911 at the latest
- How Y’all, Youse and You Guys Talk, a quiz to see your personal dialect map
- Hella Blitzgeral, roller derbyist
- Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry
- Robert Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County (and more in his book, Order Without Law)
- Philosophy Bites: Lisa Bortolotti on Irrationality
- Louis Kaplow and Steven Shavell, Fairness versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice
- Leon Mann, Queue Culture: The Waiting Line as a Social System
- About cronuts
- Carol Rose, Possession as the Origin of Property
- Thomas Merrill and Henry Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle
- An example of a “queuing app”
- About the “tit for tat” strategy and its connection to human nature in Robert Axelrod, The Evolution of Cooperation
- An excerpt on social norms from Dan Ariely’s Predictably Irrational
- The excerpt on videphones from David Foster Wallace’s Infinite Jest; see also Infinite Summer
- Michael Sandel, What Money Can’t Buy: The Moral Limits of Markets (his Tanner Lecture)
- Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes
- David Fagundes, The Pink’s Paradox: Excessively Long Food Lines as Overly Strong Signals of Quality, referring to Pink’s Hot Dogs; see also Sally’s Apizza
- The set of policies for “Krzyzewskiville,” the grassy lawn at Duke where students line up for days to get basketball tickets
- Catherine Eade, Diplomatic (Snow) Storm Erupts After American Ambassador to Switzerland Criticises Its Ski Lift Queues
- About power distance index
- John Wiseman, Aspects of Social Organisation in a Nigerian Petrol Queue
- Lior Strahilevitz, Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks (discussing reciprocity cascades)
- Dan Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law
- Felix Oberholzer-Gee, A Market for Time: Fairness and Efficiency in Waiting Lines
- Stanley Milgram, Response to Intrusion into Waiting Lines
Special Guest: Dave Fagundes.
Christian finds himself among two telecommunications and IP experts, Joe and guest Aaron Perzanowski, to discuss the FCC’s recently issued regulations mandating some form of “net neutrality” on broadband internet providers. Will these regulations hold up? Why does your cable company want to provide you with “antivirus” software? What did we receive in the mail last week? Which listener thinks we’re full of it? It’s all in this week’s show.
This show’s links:
- Aaron Perzanowski’s faculty profile and writing
- Episode 52 and Episode 53 on King v. Burwell
- William Baude, Could Obama Bypass the Supreme Court?, and Michael Dorf, Obama Wouldn’t Circumvent SCOTUS on Subsidies
- We’ve reached North Dakota!
- Our earlier shows on net neutrality: Episode 49, Episode 16 (with Jim Speta), and Episode 10 (with Christina Mulligan)
- About the FCC’s Open Internet Order
- Download page for the Open Internet Order and Commissioner statements
- About the FCC Computer Inquiries of the 1960s and 1970s
- AT&T v. City of Portland
- National Cable & Telecommunications Assn. v. Brand X Internet Services
- Verizon v. FCC
- About the FCC’s Incentive Auction for the 600MHz band
Special Guest: Aaron Perzanowski.
We start with developments in an area at the core of expertise: speed traps. We continue with policing and, mainly, more on the Obamacare II case. We also have been told to expect an emolument.
This show’s links:
- Michelle Wirth, Bill To Reduce ‘Speed Traps’ Gains Senate Approval
- DOJ Civil Rights Division, Investigation of the Ferguson Police Department; AG Holder’s prepared remarks on the report
- Oral Argument 52: Nihilism
- The SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument
- David Ziff, Halbig and the “Isolationist” Theory of Statutory Interpretation
- David Ziff, Halbig and the Problem of Creeping Constitutionalism
- Simon Maloy, GOP’s George Costanza Moment: The “Moops” Doctrine and the War on Obamacare
- coffeegeek.com’s review of the Gene Cafe Roaster
Joe and Christian try to understand King v. Burwell, or Obamacare II, in light of the oral argument last week.
This show’s links:
- The SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument`
- The Supreme Court’s page for downloading audio of the oral argument
- Dahlia Lithwick’s Amicus episode about the case
Why have prison populations exploded? Yeah, we bet you have an opinion on this. But we’ve got someone on the show with the math: Fordham law prof and empiricist extraordinaire John Pfaff. Everything you think you know about our staggering levels of imprisonment are probably wrong. Also, we offer to set up the Supreme Court audio live stream. Also we report on one listener’s Oral Argument power rankings.
This show’s links:
- John Pfaff’s faculty profile and writing
- Blakely v. Washington and United States v. Booker
- United States v. Vernier, increasing a sentence for credit card fraud from up to 51 months to 210 months based on a conclusion that fraud was accompanied by a murder
- John Pfaff, The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines
- Leon Neyfakh, Why Are So Many Americans in Prison? (interviewing John for Slate) (and here is the tweet from the Texas District and County Attorneys Association saying John’s theory is idiotic)
- John Pfaff, The Micro and Macro Causes of Prison Growth
- Joe Palazzolo, U.S. Prisons Grapple with Aging Populations
- Bureau of Justice Statistics, Survey of Inmates in State Correctional Facilities
- David Ball, Why State Prisons?
- John Pfaff, The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options
Special Guest: John Pfaff.
Last year’s cert denials in various same-sex marriage cases led to renewed discussion concerning the counterintuitive (to Christian, at least) notion but conventional wisdom that state courts are not bound to follow lower federal courts’ interpretations of federal law. While we discussed and debated this last fall, Amanda Frost was putting the finishing touches on an article reviewing, challenging, and otherwise completely examining this curious doctrine. Was Michael Dorf’s Hammer Blow, as we named the episode with him, the final blow or might some of Christian’s naive doubts be rehabilitated by Prof. Frost’s exhaustive analysis? Yep, that kind of cliffhanger is how we roll around here. Also, North Dakota and the permissibility of “funny business” in our email address.
This show’s links:
- Amanda Frost’s faculty profile and writing
- A helpful list of North Dakota landmarks
- 2 Hidden Ways to Get More from Your Gmail Address
- The Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China
- Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?
- Our trilogy of prior episodes on this issue: with Anthony Kreis, with Michael Dorf, and with Steve Vladeck
- The series of blog posts coinciding with those episodes: from Michael Dorf here and here, Steve Vladeck, and Christian Turner
- Michael Dorf, Even More Thoughts on State Court (Non)Obligation to Follow Federal Appeals Court Precedents (Wherein I Respond to Professor Frost)
- Amanda Frost, The “Inferior” Federal Courts
- Chief Justice Roy Moore’s Administrative Order
- Eric Eckholm, Supreme Court Undercuts Alabama Chief Justice’s Argument to Delay Same-Sex Marriages
- Lockhart v. Fretwell, in which Justice Thomas concurred and briefly argued that the “Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation”
- Cooper v. Aaron
- Martin v. Hunter’ Lessee
- Amanda Frost, Overvaluing Uniformity
- Erie Railroad Co. v. Tompkins; see also our episode all about Erie
- About the adequate and independent state grounds doctrine
- James Pfander, One Supreme Court: Supremacy, Inferiority, and the Judicial Power of the United States (see also this very brief book review)
- Dice v. Akron, Canton and Youngstown Railroad Co.
- Bush v. Gore (Rehnquist’s concurring opinion arguing that state courts may not interfere, even through state constitutional judgments, with certain legislatively enacted election laws that interact in advantageous ways with federal law)
- About Chevron deference
- Abbe Gluck, The States as Laboratories of Statutory Interpretation
- United States Telecom Association v. FCC
- Peter Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action
Special Guest: Amanda Frost.
From an undisclosed location, Joe phones in to talk Arsenal, cigarettes, IQ, marijuana, transcendence, IP law, the regulation of the internet, a look back at taxing eggs, getting rid of Groundhog Day, and nonsense (but I repeat myself).
This show’s links:
- Episode 7: Speed Trap
- Fresh Air, Why Teens Are Impulsive, Addiction-Prone and Should Protect Their Brains (text from and a link to the audio of a Fresh Air interview with neurologist Frances Jensen)
- Flowers for Algernon and Lucy
- INS v. AP, Traffix Devices v. Marketing Displays, and Bonito Boats v. Thunder Craft Boats
- Tom Wheeler (FCC Chairman), This Is How We Will Ensure Net Neutrality
- Episode 10: My Beard Is Not a Common Carrier (guest Christina Mulligan)
- Episode 16: The Whole Spectrum (guest Jim Speta)
- Hayley Tsukayama, AOL Still Makes Most of Its Money Off Millions of Dial-Up Subscribers
- Joe Brodkin, Verizon Nears “the End” of FiOS Builds (Joe was right.)
- FCC, Chairman Wheeler Proposes New Rules for Protecting the Open Internet
- About municipal broadband
- Episode 47: Making Lisa So Mad (featuring our discussion of the opinion in Perez v. Commissioner of Internal Revenue finding compensation for egg donations to be taxable)
- Episode 33: Other Minds (guest Matthew Liebman)
- About Groundhog Day
- Eyder Peralta, Groundhog in Wisconsin Bites Mayor’s Ear
With evidence and criminal procedure scholar Lisa Kern Griffin, we discuss the role of narrative, storytelling, and probability in assessing guilt and innocence. Also, feedback on coffee, citation, librarians, and argument.
This show’s links:
- Lisa Kern Griffin’s faculty profile and writing
- Sonja West, First Amendment Neighbors, citing Joe Miller, Christian Turner, and Sonja West, Oral Argument 1: Send Joe to Prison at 46:53, available at http://oralargument.org/1
- Bunny’s coffee-roasting links: the Nesco Professional 800-watt Roaster, Green Coffee Buying Club, and information from Sweet Maria’s; Listener Zachary’s links: the Fresh Roast Plus 8 and White Mountain Coffee
- AP, Police Urge Google to Turn Fff ‘Stalking’ Feature on Mobile App for Drivers and Waze
- Video of Mike Tyson’s ten fastest knockouts
- Video of Lindsey Graham asking AG-nominee Loretta Lynch about the legal connection between gay marriage and polygamy
- Oral Argument 40: The Split Has Occurred, discussing Judge Sutton’s gay marriage opinion
- Oral Argument 44: Serial
- Oral Argument 45: Sacrifice
- Lisa Kern Griffin, Narrative, Truth, and Trial
- About the murder of Julie Jensen
- Jensen v. Schwochert (granting Jensen’s petition for a writ of habeas corpus on Confrontation Clause grounds); see also the denial of the state’s motion to alter the habeas judgment (note that this case is before the Seventh Circuit, which has had argument but not yet ruled)
- Christian Turner, Bet Your Life Before You Impose Death
- Old Chief v. United States
- Mark Spottswood, Emotional Fact-finding
Special Guest: Lisa Kern Griffin.
We clear the docket while enjoying some listener-provided coffee. Topics include coffee roasting, listener feedback, the Oral Argument roadshow, and a recent decision on the taxation of egg donors.
This show’s links:
- Two Story Coffeehouse
- Rene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money
- The Madigan Memorial Hospital, Houlton, Maine (jpeg)
- Oral Argument on Twitter and on Facebook
- Oral Argument 45: Sacrifice, on which we discussed Nicholas Georgakopoulos’s email on reasonable doubt
- Derek Muller’s invitation to make a stop at Pepperdine Law on the Oral Argument road show, which stop is imagined in this photo:
- Oral Argument 14: The Astronaut’s Hair (guest Lisa Milot) and Oral Argument 17: Flesh List (guest Kim Krawiec)
- Perez v. Commissioner of Internal Revenue
- Lisa Milot, What Are We - Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials
- Taxing Eggs, a mini-symposium on the Faculty Lounge blog
- Margaret Jane Radin, Property and Personhood
- Kimberly Krawiec, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market
- The Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China
Leave your company, take your ideas, and go to jail. Ok, maybe it’s not always that extreme, but we talk with Orly Lobel, author of Talent Wants to Be Free, about the laws that govern the minds and ideas of employees. From noncompete agreements, to trade secrets, to the illegal talent cartels of Silicon Valley, Orly helps us understand the field she calls “human capital law.” But we start, of course, with woodchippers, North Dakota, and seat recliners.
This show’s links:
- Orly Lobel’s faculty profile and writing
- The Woodchipper in Fargo Exhibit (and on Facebook)
- The Smoking Gun’s collection of performers’ backstage riders
- Orly Lobel, Talent Wants to Be Free, Orly’s new book on competition, secrecy, motivation, and creativity, examining companies lie Google, JetBlue, and Mattel (Amazon or IndieBound)
- Orly Lobel, The New Cognitive Property
- Mattel v. MGA Entertainment, the Barbie vs. Bratz case
- PepsiCo v. Redmond
- About the Uniform Trade Secrets Act
- Ronald Gilson, The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete
- AnnaLee Saxenian, The Origins and Dynamics of Production Networks in Silicon Valley
- AnnaLee Saxenian, Regional Advantage: Culture and Competition in Silicon Valley and Route 128
- About the “espionage case” of Sergey Aleynikov and Goldman Sachs
- Neil Irwin, When the Guy Making Your Sandwich Has a Noncompete Clause, about the Jimmy John’s noncompete clauses for its sandwich makers
- Orly Lobel and On Amir, Driving Performance: A Growth Theory of Noncompete Law
- David Streitfeld, Bigger Settlement Said to Be Reached in Silicon Valley Antitrust Case, in which Orly is quoted
Special Guest: Orly Lobel.
After beginning with, let’s face it, nonsense, we respond to listener feedback (beginning at 8:30) on, among other topics, speed traps, Serial, and Judge Edwards’ critique of legal scholarship. We wind up discussing reasonable doubt and probability (beginning at about 30:00).
This show’s links:
- Judge John Hodgman
- Episode 18: Oral Argument (with Tom Goldstein), featuring Josh Stein’s paper
- Richard Stallman’s info packet
- Episode 44: Serial
- Natasha Vargas-Cooper, Jay, Key Witness from “Serial” Tells His Story for First Time, parts one, two, and three
- Slate’s Serial Spoiler Special podcast discussing the Jay interviews
- Ezra Klein, Serial Revisited
- Susan Simpson’s The View from LL2 blog
- Rene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money
- Episode 43: Some Stuff I Like and Some Stuff I Don’t, featuring some speed trap discussion and our discussion of Judge Edwards’ critique of legal scholarship
- Gross, O’Brien, Hu, and Kennedy, Rate of False Conviction of Criminal Defendants Who are Sentenced to Death
- Christian’s silly wrongful conviction calculator, which you can copy and paste into the wonderful Calca app
- All about the Innocence Project
- Kevin Drum, America’s Real Criminal Element: Lead
- Dragonslayer, the 1981 film
- The Flynn effect
- Philosophy Bites: Hugh Mellor on Probability, a fascinating episode of a great series of brief discussions on philosophy
The Serial podcast, about the 1999 murder of Hae Min Lee and subsequent conviction of Adnan Syed, has become the most popular podcast ever. In our first anniversary show — which, sure, we could have broken into two parts but consider this super-sized show our gift to you for the holidays — we talk with listeners and past guests about their own reactions to the show and to the case. We discuss reasonable doubt, race, procedure, evidence, voyeurism, what we think, what others think, and the inherent (but vastly improvable) tragedy of criminal justice. Guests: Hunt Wofford, Nathan, Anthony Kreis, Jasmine Guillory, Mehrsa Baradaran, and Dahlia Lithwick. (Several of our guests responded to a call to listeners that we posted on our Facebook and Twitter feeds. Follow us to be in on such things in the future.)
This show’s links:
- Serial, the most popular podcast ever
- Willa Paskin, Totally Obsessed
- Christian Turner, Bet Your Life Before You Impose Death
- About Hunt Wofford
- Mythbusters
- Links to some Serial parodies
- Murder on a Sunday Morning
- About procedural justice
- About Anthony Kreis and his last appearance on our show
- Debra Cassens Weiss, Posner Questions Basis for ‘Archaic’ Hearsay Rule
- The Scottish “not proven” verdict
- About Mehrsa Baradaran and her first and second appearances on our show
- Susan Simpson, Serial: Why the Nisha Call Shows that Hae Was Murdered at 3:32 p.m.
- About Dahlia Lithwick and her appearance on the show
- Dahlia’s new podcast, Amicus, and her video interviews on SCOTUSblog
- Dahlia Lithwick, A Horrifying Miscarriage of Justice in North Carolina
- Justice Scalia’s concurrence in Callins v. Collins (criticizing Justice Blackmun for not using the McCollum case, with its brutal facts, for dissenting from the imposition of the death penalty)
- Justice Blackmun’s subsequent dissent in McCollum v. North Carolina, addressing Scalia’s concurrence
- Brandon Garrett’s page, featuring his recent books
Special Guests: Anthony Kreis, Dahlia Lithwick, and Mehrsa Baradaran.
We’re back. Speed traps, the police, and Judge Edwards’ renewed attack on modern legal scholarship.
This show’s links:
- Complaint in Jarman v. City of Grain Valley
- Elli v. City of Ellisville
- Oral Argument 7: Speed Trap and Oral Argument 8: Party All over the World
- City of Warrensville Hts. v. Wason (the speed trap case in which the dissent cites Kant’s categorical imperative and which we mentioned at the end of episode 9)
- About “contempt of cop”
- Raizel Liebler and Keidra Chaney, TLF Recommended Podcasts by and for Best Friends (recommending us (thanks!) alongside Denzel Washington Is the Greatest Actor of All Time, Period.)
- Michael Dorf, Judge Harry Edwards Is Still Unimpressed With Legal Scholarship
- Harry Edwards, Another Look at Professor Rodell’s Goodbye to Law Reviews
When should the police be able to search your phone, your computer, your email, or your dropbox? Orin Kerr thinks that over time, and in the face of changing technology and social practices, courts maintain a relatively consistent balance between privacy and the state’s interest in criminal investigation. The legal changes that maintain that consistency seem to be acceptable to originalists, pragmatists, and living constitutionalists alike. From cell phones to horses and buggies to automobiles and confidential informants. It’s the search episode. And then … yep, speed traps. Joe and Orin make a spiritual connection as non-warners.
This show’s links:
- Orin Kerr’s faculty profile, writing, and blogging at the Volokh Conspiracy
- Background on the Fourth Amendment and the exceptions to the warrant requirement
- Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment
- Carroll v. United States and the automobile exception
- Ex Parte Jackson (one of the earliest Fourth Amendment decisions)
- Riley v. California (and see Orin’s post about the case shortly after it was decided
- Example undercover informant cases: On Lee v. United States and Lewis v. United States
- Keynote by Judge Richard Posner at the Empirical Legal Studies Conference
- Jacqueline Ross, Tradeoffs in Undercover Investigations: A Comparative Perspective
- John Mikhail on Universal Moral Grammar, on the excellent philosophy bites podcast
- Orin Kerr, The Curious History of Fourth Amendment Searches
- Orin Kerr, Foreword: Accounting for Technological Change
- United States v. Robinson
- Paul Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias
- United States v. Ganias
- Our first speed trap shows: Speed Trap and Party All Over the World
Special Guest: Orin Kerr.
Robots. What are they? Just a new sort of tool, qualitatively different kinds of tools that do things we neither expect nor intend, new kinds of beings? With the incipient explosion of complex robots, we may need to re-examine the way law uses and understands intention, responsibility, causation, and other basic concepts. We’re joined by Ryan Calo, who has achieved the outrageously awesome feat of earning a living thinking about robots. (It’s pronounced Kay-low. So Joe got this one right.) We discuss flying drones, chess computers, driverless cars, antilock brakes, and computer-conceived barbecue sauce.
This show’s links:
- Ryan Calo’s faculty profile and writing
- Follow-up from listener David on Episode 40: The Split Has Occurred, Shelley v. Kraemer, and Buchanan v. Warley
- Lego Mindstorms
- Ryan Calo, Robots and Privacy
- FIRST Lego League robotics competition for ages nine to fourteen
- DJI Phantom Vision 2+ flying drone camera thing capable of making like this one and this one
- Mark Berman, National Park Service Bans Drone Use in All National Parks and Chris Vanderveen, Man Banned from Yellowstone after Drone Crash
- FAA’s Key Initiatives page on drones
- Joan Lowy, Drone Sightings Up Dramatically
- Ryan Calo, Robotics and the Lessons of Cyberlaw (including a discussion of the concepts of embodiment, emergence, and social meaning as the core of the legal challenge posed by robotics)
- Stephen Johnson, Emergence: The Connected Lives of Ants, Brains, Cities, and Software
- Radiolab, Emergence
- Frank Easterbrook, Cyberspace and the Law of the Horse
- Cory Doctorow, Why It Is Not Possible to Regulate Robots
- Neil Richards and William Smart, How Should the Law Think About Robotics?
- Ryan Calo, A Horse of a Different Color: What Robotics Law Can Learn from Cyberlaw
- About IBM’s Watson and Deep Blue (the chess machine)
- Daniel Suarez, Daemon
- Richard Fisher, Is It OK to Torture or Murder a Robot?
- Radiolab, Furbidden Knowledge
- Nicholas Bakalar, Robotic Surgery Report Card
- Studdert, Mello, and Brennan, Medical Malpractice
- Ryan Calo, The Case for a Federal Robotics Commission
- Excerpt from In re Polemis, the case we forgot the name of
- About Amazon’s Kiva Systems, the subsidiary that supplies Amazon with robotic warehouse workers
- Rochelle Bilow, We Put a Computer in Charge of Our Test Kitchen for a Day, and Here’s What Happened, and Mark Wilson, I Tasted BBQ Sauce Made By IBM’s Watson, And Loved It
- E.M. Forster, The Machine Stops
- About the Future Tense event, Can We Imagine Our Way to a Better Future?, including descriptions and video, in which Ryan participated
- About cognitive radio
- Daria Roithmayr, Complexity Law and Economics
- We Robot 2015, meeting April 10-11, 2015 in Seattle
Special Guest: Ryan Calo.
This is the week the circuits split. We discuss Judge Sutton’s opinion for a panel of the Sixth Circuit upholding bans on gay marriage in several states. Although Joe and Christian mainly agree about this case, Joe finds plenty of other things Christian says and does to be irritating, especially during our first eighteen minutes when we discuss feedback.
This show’s links:
- Michael Dorf, Why Danforth v. Minnesota Does Not Undermine My View About State Court Decisions to Follow Lower Federal Court Precedent
- Our episode with Peabody award winner, Tom Goldstein
- About typefaces (and the difference between typefaces and fonts)
- About King v. Burwell, the case the Supreme Court has taken up challenging subsidies on federally run exchanges; see also Christian’s take and Abbe Gluck’s
- The Unrecorded Podcast
- Michelle Meyer, Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways from Maine DHHS v. Hickox (which Christian wrongly attributed to Hank Greely, who has also written on Ebola, but is in fact from fantastic friend of the show Michelle Meyer - sorry Michelle), further to our last episode on the domestic side of the Ebola
- DeBoer v. Hodges, the Sixth Circuit decision by Judge Sutton upholding various state marriage bans
- Oral Argument 36: Firehose of Inequality (guest Anthony Kreis)
- Baskin v. Bogan, Judge Posner’s decision striking down state marriage bans and Christian’s post about the Seventh Circuit’s oral arguments in that case
- About Baker v. Nelson
- Hicks v. Miranda
- Loving v. Virginia
- Plessy v. Ferguson
- Romer v. Evans
- Balkinization Symposium on Unconstitutional Animus (We’d apologize for the error of attributing this to SCOTUSblog, but we don’t have time to apologize for all of our errors.)
- William Eskridge, Jr. A History fo Same Sex Marriage
It’s our ebola episode. You know, I think that’s description enough.
This show’s links:
- Fazal Khan’s profile and his writing
- Our U.S. News rankings episode, Heart of Darkness
- More on the debate about state courts’ following federal circuit courts (relevant to the gay marriage rulings) that arose during our episodes with Michael Dorf and with Steve Vladeck: (1) a post by Michael Dorf, (2) a post by Steve Vladeck, and (3) a post by Christian Turner
- About Ebola virus diseased and about Ebola in the United States
- The CDC’s information page on Ebola transmission and Review of Human-to-Human Transmission of Ebola Virus
- Michael Dorf, Is There Any Risk of Ebola Transmission from an Asymptomatic Person?
- EM Leroy et al., Human Asymptomatic Ebola Infection and Strong Inflammatory Response
- Gostin, Hodge, and Burris, Is the United States Prepared for Ebola
- Tavernise, Shear, and Cooper (for the NY Times), Seeking Unity, U.S. Revises Ebola Monitoring Rules
- Laura Donohue, Biodefense and Constitutional Constraints (an excellent history of US and UK quarantine law)
- Josh Hicks, A Brief History of Quarantines in the United States (a very short timeline in the Washington Post) and Peter Tyson, A Short History of Quarantine (a more detailed and global timeline)
- Jacobson v. Massachusetts; see also James Colgrove and Ronald Bayer, Manifold Restraints: Liberty, Public Health, and the Legacy of Jacobson v Massachusetts
- Tara Ragone, State Quarantines: Balancing Public Health with Liberty Interests (a very helpful blog post discussing issues and authorities relevant to the Kaci Hickox case)
- Jared Cole (for the Congressional Research Service), Federal and State Quarantine and Isolation Authority
- Gostin, Burris, and Lazzarini, The Law and the Public's Health: A Study of Infectious Disease Law in the United States
- About Philadelphia’s Yellow Fever epidemic of 1793
- The text of the Public Health Service Act (containing the authority for federal quarantine and isolation)
- Jew Ho v. Williamson
- Norimitsu Onishi (for the NY Times), Quarantine for Ebola Lifted in Liberia Slum
- Michael Dorf, Containing Ebola: Quarantine and the Constitution
- Arjun Jaikumar, Red Flags in Quarantine: The Questionable Constitutionality of Federal Quarantine After NFIB v. Sebelius
- Mark Rothstein, From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine
- Morgan’s Steamship Co. v. Louisiana Board of Health (upholding the constitutionality of state quarantine)
- CDC, Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure
- See section 604 of the The Model State Emergency Health Powers Act
- Fazal Khan, Ensuring Government Accountability During Public Health Emergencies
- City of Newark v. J.S. (analyzing the Due Process and statutory rights of a “non-compliant,” TB-infected, homeless man)
- Greene v. Edwards (awarding a state writ of habeas corpus in a TB isolation case)
- About the 2007 tuberculosis scare caused by the travel of Andrew Speaker
- Fidler, Gostin, and Markel, Through the Quarantine Looking Glass: Drug-Resistant Tuberculosis and Public Health Governance, Law, and Ethics (also discussing the Andrew Speaker incident)
- Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health
- Wendy Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine (interesting, among other reasons, for the fact it was written in 1985 in the midst of the relative early days of the AIDS crisis)
- City of New York v. New Saint Mark’s Baths
- Randy Shilts, And the Band Played On
- About the John Warner National Defense Authorization Act of 2007, the Posse Comitatus Act, and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013
- Mathews v. Eldridge (and, yes, there are only three factors)
- Daniel Markovits, Quarantines and Distributive Justice
- Helene Cooper and Michael Shear, Joint Chiefs Chairman Urges 21-Day Quarantine for Troops Working in Ebola Zone
Special Guest: Fazal Khan.
Steve Vladeck joins us to dive further into federal courts and federal rights. After getting Steve’s take on our discussion concerning federal courts of appeals and gay marriage last week with Michael Dorf, we discuss the issues raised by what Steve thinks could be a major new case in the Supreme Court this term: Armstrong v. Exceptional Child Center. How and when can you enforce a federal statute or the Constitution against state officials? Simple question, right?
This show’s links:
- Steve Vladeck’s profile, his writing, his info and posts on the Just Security blog, and his Twitter feed
- Oral Argument 34: There’s Not Really a Best Font with Matthew Butterick and Oral Argument 11: Big Red Diesel (when Butterick’s Practical Typography was first brought up on the show)
- Oral Argument 37: Hammer Blow, in which Michael Dorf delivered many lessons in the relationship between state courts and lower federal courts, an issue critical for the current state of gay marriage in the United States
- Danforth v. Minnesota (deciding that states, as a matter of state law, may apply retroactively new constitutional rules announced by the Supreme Court, even if federal law does not require retroactive application)
- Bush v. Gore (Rehnquist’s concurring opinion arguing that state courts may not interfere, even through state constitutional judgments, with certain legislatively enacted election laws that interact in advantageous ways with federal law)
- VOPA v. Stewart
- Stephen Vladeck, Douglas and the Fate of Ex Parte Young
- Douglas v. Independent Living Center
- The Eleventh Amendment: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
- Ex part Young (And note in dissent we find Justice Harlan, the heroic dissenter in Plessy v. Ferguson, sounding the federalist alarm: Allowing private suits in federal courts against state officers for their official actions “would inaugurate a new era in the American judicial system and in the relations of the National and state governments. It would enable the subordinate Federal courts to supervise and control the official action of the States as if they were "dependencies" or provinces.”)
- The cases Steve cites as leading up to Ex parte Young: Hans v. Louisiana (interpreting the Eleventh Amendment to bar suits arising under federal law against a state not only by citizens of “another state” but also by its own citizens) and Lochner v. New York
- Adar v. Smith (the Fifth Circuit case to which Steve referred that permitted Louisiana to refuse to add a gay adoptive parent’s name to a birth certificate)
- Alexander v. Sandoval (marking the end of inferring private causes of action in federal statutes)
- Gonzaga University v. Doe
- Lyle Deniston, Opinion Analysis: A Right to Sue Under Medicaid – Maybe
- Pennsylvania Pharmacists Association v. Houstoun (in which then-Judge Alito notes that while providers may not sue under the Medicaid access requirements “Medicaid recipients plainly satisfy the intended-to-benefit requirement and are thus potential private plaintiffs” under section 1983)
- SCOTUSblog page for Armstrong v. Exceptional Child Center, which will be updated with briefs, arguments, and, ultimately, the Court’s decision
- Seminole Tribe of Florida v. Florida
- Steve’s amicus brief in Douglas
- Jonathan Freiman, to whom both Steve and Christian trace experience with detainee cases
Special Guest: Steve Vladeck.
What do the federal appeals courts’ striking down of same-sex marriage bans actually mean for marriage equality in the states? Are the state courts bound to follow these decisions while the Supreme Court pursues other interests? Well, Christian got this completely wrong last week, and luckily Michael Dorf is on the line to set us straight. Knowledge bombs galore are dropped.
This show’s links:
- Michael Dorf’s profile, his writing, and his world-famous blog Dorf on Law
- Amicus, the new Slate podcast by Dahlia Lithwick
- Oral Argument 36: Firehose of Equality, the last episode in which Anthony Kreis was terrific and Christian made an error that led to this show
- Michael Dorf, No Massive Resistance to Same-Sex Marriage from South Carolina
- Michael Dorf, The Relative Importance of Inter-Circuit Conflict and State-Circuit Conflict as Cert Criteria
- About claim preclusion and nonmutual issue preclusion; United States v. Mendoza (holding that issue preclusion does not apply against the federal government)
- Colin Wrabley, Applying Federal Courts of Appeals’ Precedent
- The Supremacy Clause of the U.S. Constitution
- Lochart v. Fretwell, in which Justice Thomas concurred and briefly argued that the “Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation”
- Martin v. Hunter’ Lessee
- About the grimly named Antiterrorism and Effective Death Penalty Act, which everyone calls “the AEDPA,” and pronounces ED-puh
- The federal habeas statute, reflecting in subsection (d) the deference required by the AEDPA to state court judgments on issues of federal law in habeas, which federal law must be “clearly established . . . by the Supreme Court” to be a constraint in habeas on states at all
- Teague v. Lane
- About the removal jurisdiction of federal courts, the ability of a defendant to move a state court action to a federal court under certain circumstances
- Guido Calabresi, Federal and State Courts: Restoring a Workable Balance
- Henry Friendly, In Praise of Erie — And of the New Federal Common Law (unfortunately only available for a fee on Hein Online)
- State v. Dukes (an intermediate South Carolina appellate ruling citing State v. Ford Motor Co. for the proposition that South Carolina courts are bound by the constitutional rulings of the Fourth Circuit)
- Kevin Walsh, Re: SSM Cert Denials (suggesting South Carolina should review and change its apparent approach to Fourth Circuit precedent)
- Michael Dorf, Should Anti-SSM Appeals Court Judges Rule For Same-Sex Marriage Based On The Cert Denials?
- Michael Dorf, Prediction and the Rule of Law (an article analyzing the general point applied in the above-linked blog post)
- Oral Argument 28: A Wonderful Catastrophe, which is all about and contains links for the famous Erie case
- Michael Dorf, How the Supreme Court’s Inaction on Same-Sex Marriage Echoes Its Conduct in the Civil Rights Era
- United States v. Windsor
- Michael Dorf, Cert Denied Is Justice Delayed: SCOTUS Kremlinology in the SSM Cases
- Stuart v. Laird and some background
Special Guest: Michael Dorf.
The Supreme Court this week handed down a series of landmark non-decisions. We talk with PhD candidate and commentator Anthony Kreis about the confusing, hopeful, exciting, promising, uncertain, and evolving state of marriage equality. In the wake of a (so far) uniform wave of appellate court decisions striking down gay-marriage bans, the Supreme Court steps in and … lets them stand without taking them up for decision. Why? And what is the state of law? What is likely to happen, and what are local officials to do? (And if you’re in a position to hire a Visiting Assistant Professor or Fellow, you’d be crazy not to try to hire Anthony.)
This show’s links:
- About Anthony Kreis, his CV, and his twitter feed
- Anthony Kreis, Marriage Equality in State and Nation
- Amy Howe, Today’s Orders: Same-Sex Marriage Petitions Denied (summarizing the cert denials and containing links to the SCOTUSblog pages for the decisions striking down marriage bans in the Seventh (Posner’s “Go figure” decision), Tenth (also here), and Fourth Circuit Courts of Appeals)
- Latta v. Otter, the Ninth Circuit case handed down on Tuesday of this week and striking down marriage bans in Nevada and Idaho
- Loving v. Virginia and amazing audio of the oral argument
- McLaughlin v. Florida
- Last term’s gay marriage decisions: United States v. Windsor and Hollingsworth v. Perry
- Description of and links to audio of oral arguments in the several Sixth Circuit cases challenging marriage bans in Kentucky, Michigan, Ohio, and Tennessee
- Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling (see especially beginning at p.303 about whether Roe is to blame for the ensuing political conflict over abortion and what that might say about how courts should approach gay marriage)
- A recent Pew survey on, among other things, whether homosexuality is sinful
- Heather Hollingsworth, Koster Won’t Appeal Same-Sex Marriage Ruling, reporting that the Missouri AG won’t appeal a state trial court ruling requiring recognition of same-sex marriages performed in other states
- Geoff Pender, State’s Gay Marriage Ban’s Days Appear Numbered (about Mississippi)
- Some background on homosexuality and Catholicism
- Margaret Fosmoe, Notre Dame, Saint Mary’s Extend Benefits to Same-Sex Spouses
- Doug Richards, Handel: Gay Parents “Not in the Best Interest of the Child” (interview transcript showing the rhetoric around the 2010 Georgia gubernatorial primary, including this gem: “Why is marriage between one man and one woman? (Laughs). Are you serious?”)
- James Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages
- Dahlia Lithwick and Sonja West, Stop Draggin’ My Heart Around: The Supreme Court Is Harming people with Its Inscrutable Gay Marriage Actions.
- South Carolina v. Condon, order of the South Carolina Supreme Court barring probate judges from issuing marriage license, notwithstanding the Fourth Circuit’s decision in Bostic, until the federal district court in South Carolina takes action (in response to AG Alan Wilson’s petition)
- Saikrishna Pakrash, The Executive’s Duty to Disregard Unconstitutional Laws
- Kansas Supreme Court’s temporary injunction blocking issuance of same-sex marriage licenses
- Lyle Denniston, Gay Marriage and Baker v. Nelson
- Catherine Thompson, GOP Nominee for Wisconsin AG Says He Would Defend Interracial Marriage Ban
- Center for Reproductive Rights, What if Roe Fell? (see especially pages 8-9 on the repeal implications of a federal finding of unconstitutionality)
- Christian Turner, Roles
Special Guest: Anthony Kreis.
We discuss the common law and originalism with law, literature, and history scholar Bernadette Meyler. Some of today’s most intense constitutional controversies revolve around the proper sources of interpretive tools. Some forms of originalism, believing judging is legitimate only if it foregoes political choice and instead adopts the choices made by democratically accountable institutions, attempt to locate the sole meanings that constitutional text, whether “natural born citizen,” “habeas corpus,” or “ex post facto,” had in the common law at the time of its adoption. Bernie’s research reveals that the common law itself, rather than speaking with one voice, exhibited some of the same diversity of interpretation and opinion that we see in debates about meaning today. Nonetheless, she believes that interpretation that gives weight to those original debates, rather than non-existent singular meanings, is better justified than unmoored living constitutionalism. She calls this method “common law originalism.”
This show’s links:
- About Bernadette Meyler and her writing
- Follow-up from Matthew Butterick, in which he reminds us that the podcast app we mentioned last week, Overcast, uses his typeface, Concourse
- Ed Mazza, Nearly 1,000 Chickens Killed (a story of animal victimization related to our conversation with Matthew Liebman)
- Background on the common law
- About Sir Edward Coke and his Law Reports, which can be browsed here
- Calvin’s Case as reported by Coke
- About Dr. Bonham’s Case
- Background on originalism; see also here
- Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws (upon which he expands in A Matter of Interpretation
- Lawrence Solum, Semantic Originalism (an originalist theory that includes “the idea of the division of linguistic labor”)
- Bernadette Meyler, Accepting Contested Meanings
- Bernadette Meyler, Defoe and the Written Constitution (compare with Andrew Coan, The Irrelevance of Writtenness in Constitutional Interpretation)
- Walt Whitman, Song of Myself
- Oliver Wendell Holmes: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner (1918)
- Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It
Special Guest: Bernadette Meyler.
We discuss the role of design in the practice of law with renowned typographer-lawyer Matthew Butterick. The conversation ranges among very practical tips for making better documents, why so many legal documents are poorly designed, why lawyers should care about design, and what it even means to design a document. Matthew explains why IRS forms are some of the most well-designed legal documents around. Also, Joe manages to connect (positively) enjoying physical books with smelling gasoline.
This show’s links:
- About Matthew Butterick, also here and @mbutterick on Twitter
- Nicholas Georgakopoulos, Knee Defender, Barro’s Error, and Surprise Norms
- Christopher Buccafusco and Chris Sprigman, Who Deserves Those 4 Inches of Airplane Seat Space?
- Keith O’Brien, America’s Chimp Problem
- The pronunciation of “chimpanzee”
- Cecilia Kang, Podcasts Are Back - And Making Money (sadly, not ours, but here’s Christian’s post on Podcasts and some of the reasons we started this show)
- Overcast, our preferred podcast app
- Episode 11: Big Red Diesel, in which we discussed typography, text editing, and the worst breaches of email etiquette
- Butterick’s Practical Typography (and how to pay for it if you choose!)
- From the book: Typography in Ten Minutes and Summary of Key Rules
- Matthew Butterick, Typography for Lawyers (and how to purchase physical and Kindle editions)
- Ben Carter, Typography for Lawyers: One Space, Double Spacing, and Other Good Ideas
- An example of a Supreme Court opinion, notable for its design
- Robin Williams, The Mac is Not a Typewriter
- Matthew Butterick, The Bomb in the Garden, text and images from a talk Matthew gave at TYPO San Francisco in 2013
- Rob Walker, The Guts of a New Machine, reporting on the iPod’s first two years and including the quote from Steve Jobs that “design is how it works” (Note too the uncertainty in 2003 whether the iPod would go on to sell like the breakthrough Sony Walkman, which sold 186 million in twenty years. As of this article, the iPod had sold 1.4 million. It went on to sell 350 million in eleven years.)
- Dan Barry, A Writing Coach Becomes a Listener, a profile of William Zinsser, author of On Writing Well
- Mike Monteiro, Design Is a Job
- Lawrence Solum, Legal Theory Lexicon: Fit and Justification
- Patrick Kingsley, Higgs Boson and Comic Sans: The Perfect Fusion
- Matthew Butterick, Pollen, “a publishing system that helps authors create beautiful and functional web-based books” and that “includes tools for writing, designing, programming, testing, and publishing”
- Matthew’s Equity and Concourse typefaces
- Matthew Butterick, The Economics of a Web-Based Book: Year One
Special Guest: Matthew Butterick.
Can non-human animals be “victims” of a crime? The Oregon Supreme Court recently decided they could be. We talk with Matthew Liebman, senior attorney with the Animal Legal Defense Fund, about the law of animals. Why and how do we prohibit animal cruelty? Is it to protect our own feelings, the inherent rights of animals themselves, a little of both? Does prohibiting cruelty protect us from hurting one another? Does a housefly have a right to an education? We discuss the difficulties of being perfect, the omnipresence of trade-offs, whaling by native peoples, whether a chimpanzee can sue in habeas corpus. And, come to think of it, why does Joe pronounce chimpanzee incorrectly, and how did he get Christian to start doing the same? This is the one about the role of animals in a system of human cooperation, and it features an all to brief return of the monkey selfie. (And we finally get to some of the excellent listener feedback we’ve gotten. Keep it coming: oralargumentpodcast@gmail.com.)
This show’s links:
- About Matthew Liebman, senior attorney for the Animal Legal Defense Fund
- Bruce Wagman and Matthew Liebman, A Worldview of Animal Law
- Oregon v. Nix, the case about animals as “victims”
- David Favre and Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800s (PDF and HTML)
- About Henry Bergh, founder of the American Society for the Prevention of Cruelty to Animals
- The Moral Status of Animals, an overview that includes a description of Immanuel Kant’s views on the moral status of animals
- Andrew Ireland Moore, Defining Animals as Crime Victims (note, Joe referred to this article, but the one by my classmate, Adam Kolber, is here)
- Current cases in which ALDF is involved
- Leanne Louie, Toothed Whales: Are They People Too
- Thomas Martin, Whaling Rights of the Makah (see also, via HeinOnline, Lawrence Watters and Connie Dugger, Hunt for Gray Whales: The Dilemma of Native American Treaty Rights and the International Moratorium on Whaling
- Maneesha Deckha, Animal Justice, Cultural Justice: A Posthumanist Response to Cultural Rights in Animals (Hein only) and Initiating a Non-Anthropocentric Jurisprudence
- Steven Wise’s Nonhuman Rights Project
- Michael Mountain, Appeals Court Sets Date for First Chimpanzee Lawsuit
- Sierra Club v. Morton, in which Justice Douglas would find legal standing in the natural world itself (and citing Christopher Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects)
- Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (also see an overview by the authors)
- About the other mind problem
- About cognitive ethology and animal cognition
- Ben Beaumont-Thomas, SeaWorld shares tumble 33% following Blackfish documentary
- Tilikum v. Sea World Parks and Entertainment, the 13th Amendment case brought on behalf of Sea World’s orcas
- American Meat Institute v. USDA
Special Guest: Matthew Liebman.
We’re back with knees and gay marriage. And constitutional scholar Lori Ringhand. In the battle between recliners and knee defenders, Joe tells us the real enemy is the airline who has sold the same space twice. Somehow nose-punching, rapid window shade flipping, and the high arctic figure into the discussion. Turning to Judge Posner’s smackdown of midwestern marriage bans, we start with style: is there such a thing as too much smack? Then we turn to the really interesting bit, Posner’s reimagining of judicial scrutiny of discrimination. Also: speed traps.
This show’s links:
- Lori Ringhand’s faculty profile, books, and articles
- Episode 31: Knee Defender, in which we first spoke of the airplane seat reclining controversy
- Neil Buchanan, Airplane Seatbacks, the Coase Theorem, and Simplistic Solutions to Difficult Questions
- Josh Barro, Don’t Want Me to Recline My Airline Seat? You Can Pay Me
- Katia Hetter, Seat Recline Fight Diverts Another Flight
- Baskin v. Bogan, Judge Posner’s opinion for the Seventh Circuit striking down marriage bans in Indiana and Wisconsin
- Robicheaux v. Caldwell, Judge Feldman’s opinion upholding Louisiana’s marriage ban
- Mark Joseph Stern, Judge Posner’s Gay Marriage Opinion Is a Witty, Deeply Moral Masterpiece
- Christian Turner, 404: Argument Not Found
- Brown v. Board of Education
- What Brown v. Board of Education Should Have Said, Jack Balkin ed.
- Episode 30: A Filled Milk Caste, in which we discuss United States v. Carolene Products
- Windsor v. United States (the Second Circuit opinion that led to the Supreme Court case) and SmithKline Beecham Corp. v. Abbott Laboratories (a Ninth Circuit case), each deciding to apply heightened scrutiny to discrimination on the basis of sexual orientation
- Romer v. Evans, nominally using the deferential rational basis standard to strike down a state’s constitutional prohibition on any governmental efforts to protect gays from discrimination
Special Guest: Lori Ringhand.
Our labor day episode, in which we discuss: Judge Posner’s castigation of state attorneys in gay marriage cases, professionalism (shiver) and politeness, the knee defender and recliners, airplane boarding and luggage retrieval, the exciting new adventures of the Town of Greece, satanists, and contempt of cop.
This show’s links:
- Seventh Circuit arguments in Baskin v. Bogan and Wolf v. Walker
- Christian Turner, 404: Argument Not Found
- Paul Ford, How to Be Polite
- About the duty to rescue
- Paul Bloom, Against Empathy in the Boston Review, with respondents
- Richard Greenstein, Against Professionalism
- The Knee Defender
- AP, Plane Diverted as Passengers Fight over Seat Reclining
- CBC News, Fired RIM Execs “Chewed Through Restraints” on Flight
- Josh Barro, Don’t Want Me to Recline My Airline Seat? You Can Pay Me
- About the so-called Coase Theorem
- Stanley Coren, Is It Safe to Ship Dogs or Cats by Air?
- About boarding patterns on airplanes
- Dahlia Lithwick, Checking In on the Town of Greece
- Episode 19: The Prayer Abides (guest Nathan Chapman), discussing the Town of Greece case
- About the Streisand effect
- Jack Jenkins, How Satanists Are Testing The Limits Of Religious Freedom In Oklahoma
- Swartz v. Insogna
- About contempt of cop
Joe’s favorites case(s) part deux, Carolene Products, the filled milk case to end all filled milk cases. We talk about a case most famous for its fourth footnote. That’s right. This episode, alongside volumes upon volumes of legal scholarship, is almost entirely concerned with a footnote. But this one almost casually suggests a principle to divide the power of the federal government between courts and the political branches. Bonus content: an idea about returning to school later in life and follow-up on the monkey selfie.
This show’s links:
- Episode 28: A Wonderful Catastrophe, including discussion of the first of Joe’s favorite cases and our discussion of the case of the monkey selfie
- Draft Compendium of U.S. Copyright Practices, including at page 54 of the linked manual: “The Office will not register works produced by nature, animals, or plants. ... Examples: A photograph taken by a monkey.”
- United States v. Carolene Products Co.
- Hebe Co. v. Shaw
- About filled milk
- Josh Blackman, 60 New Recipes for Carolene Products Co.’s Milnut from 1939
- Lochner v. New York
- Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs
- Wickard v. Filburn
- Letter from Justice Robert H. Jackson to Chief Justice Harlan F. Stone on Wickard v. Filburn
- Jackson’s thoughts on the Wickard problem were put down most candidly in a memo to his law clerk (Robert Jackson, Memorandum for Mr. Costelloe, Re: Wickard Case 15 (July 10, 1942) (on file with the Library of Congress, Jackson MSS, Box 125). Perhaps you’ll have better luck finding this online than we did. It is described in many of the many, many articles about the famous footnote.
- David Strauss, Does the Constitution Always Mean What It Says?, video of a terrific lecture
- The text of foonote four
- Louis Lusky, Footnote Redux: A Carolene Products Reminiscence (note: Joe misspoke. Lusky was a Columbia, not Yale, prof.)
- Episode 27: My Favorite Case on Plessy v. Ferguson
- Lincoln Caplan, Ruth Bader Ginsburg and Footnote Four, which concerns this appearance by Justice Ginsburg at which she discusses Footnote Four and affirmative action (just after minute 36)
- David Strauss, Is Carolene Products Obsolete?
It’s our back to school episode. We pick up in the middle of a conversation about the order of the months of the calendar and then turn to our main topic: how to teach law. With Mehrsa Baradaran we delve into why classes might turn on you, how to manage the awkward student-teacher relationship, and presumptions of competence and incompetence. We dig into Mehrsa’s Teaching While Woman blog post and all our experiences with privileges, failures, and successes. First names, last names, cold-calling? Authenticity, professionalism, and, obviously, nudist colonies. Also: Mehrsa’s aspiration to be the Postmaster General and Joe’s to be, somehow, a “Lord High Chancellor."
This show’s links:
- Mehrsa Baradaran’s faculty profile and last appearance on Oral Argument
- The Solar Hijra calendar and the Islamic calendar
- Mehrsa Baradaran, Teaching While Woman
- Lyrissa Lidsky, Ten (okay, Nineteen) Tips for New Law Professors
- Jodi Kantor, Harvard Business School Case Study: Gender Equity
- Wikipedia on Implicit association testing
- Project Implicit
- Paul Ford, How to Be Polite
- Christian’s imagined monocle-based approach to formality in the classroom:
- The Postmaster General and Executive Leadership Team (note: The current Postmaster General is Patrick Donahoe.)
- About the office of the Postmaster General (including information concerning the first Postmaster General, no spoilers, but…)
Special Guest: Mehrsa Baradaran.
Now we turn to Joe’s favorite case(s). And monkey selfies. First, some great listener feedback, and Joe’s argument that feedback should be at the end of the show. Then we dive into Erie, the first of two cases decided on April 25, 1938 that together are his favorite case(s). A man injured by an errant door on a passing train brings the case that fundamentally transforms the federal judiciary. Justice Brandeis transcends transcendental nonsense to recognize that courts make common law rather than discover it and thereby gives up power in a move Joe likens to George Washington declining to seek a third term. We close with a discussion of why no one “owns” the now-famous and delightful monkey selfie.
This show’s links:
- Overcast, the newest podcast app on the block
- Episode 8: Party All over the World
- Christian Turner, Leveling Up
- Ed Cray, Chief Justice: A Biography of Earl Warren (and here’s a review)
- Episode 27: My Favorite Case
- About the Canadian Charter of Rights and Freedoms
- Erie Railroad Co. v. Tompkins
- United States v. Carolene Products
- Swift v. Tyson
- Black and White Taxicab and Transfer Co. v. Brown and Yellow Taxicab and Transfer Co. (Holmes: “The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it.”)
- The monkey selfie: (go here to see the image if it doesn’t appear in your podcast client)
- Mike Masonic, How That Monkey Selfie Reveals The Dangerous Belief That Every Bit Of Culture Must Be 'Owned'
- Annemarie Bridy, Coding Creativity: Copyright and the Artificially Intelligent Author
What’s your favorite case? It’s a difficult question, but in this episode Christian answers it: the infamous decision in Plessy v. Ferguson that upheld racial apartheid under the “separate but equal” principle. Joe accuses him of cheating a bit, because Christian’s “favorite” is actually Justice Harlan’s celebrated solo dissent. Its greatness, though, does not lie in any sort of perfection. Severely flawed and yet great, at the same time.
This show’s links:
- Plessy v. Ferguson, which you should scan through as bit, as recommended during the show
- Some background here and here on Homer Plessy and his act of civil disobedience
- Henry Louis Gates, Jr., Plessy v. Ferguson: Who Was Plessy?
- Justice Souter’s discussion of Plessy and the role of history in judging (watch from minute one until about minute fourteen) and his Harvard Commencement speech on Plessy
- United States v. Wong Kim Ark, in which Harlan joined a dissent arguing that those children of Chinese citizens who are born in the United States should not receive citizenship; see here for a summary
- Gabriel Chin, The Plessy Myth: Justice Harlan and the Chinese Cases
We are joined by budding media celebrity, Sonja West, who got her start on Episode 1 of Oral Argument. We again turn to the Hobby Lobby decision and the Supreme Court’s odd epilogue. With Sonja’s expert guidance we try to make sense of the web of religious liberty. Also, war on women or the century of gender equality?
This show’s links:
- Sonja West’s faculty profile and writing
- Oral Argument 1: Send Joe to Prison, guest Sonja West
- Sonja West’s appearance on MSNBC’s The Last Word with Lawrence O’Donnell
- Burwell v. Hobby Lobby Stores
- The full but brief text of the Religious Freedom Restoration Act
- Oral Argument 25: Normal Religions, in which we first discussed and set out the basics of the Hobby Lobby decision
- Wheaton College v. Burwell, granting a temporary injunction pending full appellate review
- Wheaton College, the one in Illinois, and its Statement of Faith and Educational Purpose
- Form 700
- Dahlia Lithwick and Sonja West, Quick Change Justice: While You Were Sleeping, Hobby Lobby Just Got So Much Worse
- Marty Lederman, What Next in Wheaton College? Is It Also a “Win/Win” Compromise?
- University of Notre Dame v. Sebelius, Posner’s Seventh Circuit opinion on Notre Dame’s objections to filling out Form 700
- Michael Dorf, Hobby Lobby Post-Mortem Part 2: The Wheaton College Stay
- Reprieve, Gitmo Detainees Demand Same Religious Rights as Hobby Lobby
- Employment Division v. Smith, the case that launched RFRA
- Boy Scouts of America v. Dale
- Dahlia Lithwick, After Hobby Lobby, Dahlia’s analysis of the gender divide evident in and exacerbated by the Supreme Court’s end-of-term decisions (posted after we recorded)
Special Guest: Sonja West.
This is our first annual Supreme Court term roundup. And in our first effort, we manage to discuss, more or less, a single case: Hobby Lobby.
This show’s links:
- Burwell v. Hobby Lobby Stores
We talk technology and law with Kevin Collins and begin with the law of the horse. The Supreme Court has given us decisions about searching cell phones, tiny antennae and broadcast television, and patents on business methods implemented in software. Molecules, hair-drying calculating machines, DNA, and the meaning of knowledge. It’s an IP festival this week.
This show’s links:
- Kevin Collins’ faculty profile and writing
- Edinburgh’s statue of Adam Smith, though not the photo taken by listener Barbara:
- Riley v. California, the cell phone search case, PDF and HTML
- Frank Easterbrook, Cyberspace and the Law of the Horse
- Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach
- Christian Turner, The Information Law Crisis
- Sony Corp. v. Universal City Studios, Inc., the VCR case
- American Broadcasting Cos. v. Aereo, PDF and HTML
- Mike Masnick, Aereo Fallout Begins: Fox Uses Ruling To Attack Dish's Mobile Streaming Service
- Summary of the history of cable television in the U.S.
- Alice Corp. v. CLS Bank, PDF and HTML
- Episode 3: Cut It Off (guest Paul Heald)
- O’Reilly v. Morse, the telegraph case
- Nautilus v. Biosig Instruments, PDF and HTML
- Association for Molecular Pathology v. Myriad Genetics
- Kevin Collins, The Knowledge/Embodiment Dichotomy
- Kevin Collins, Bilski and the Ambiguity of 'An Unpatentable Abstract Idea’
- Michele Boldrin and David Levine, Against Intellectual Monopoly
- Michele Boldrin and David Levine, The Case Against Patents
Special Guest: Kevin Collins.
We dive into the legal nature of the regulatory state with Ethan Leib of Fordham Law School. In what sense is the making of regulatory policy, whether on the environment or on net neutrality, a legal process? Should regulatory agencies adhere to precedent or otherwise be bound by law-like doctrines? We learn about the White House’s influence over rulemaking through OIRA and question how OIRA should function and what legal principles should govern it.
This show’s links:
- Ethan Leib’s faculty profile and articles
- This Week in Law 263: More Bodies on Blackacre, on which Joe and Christian were guests
- Nestor Davidson and Ethan Leib, Regleprudence - at OIRA and Beyond
- Mark Tushnet, Legislative and Executive Stare Decisis
- The nuclear option
- About OIRA, the Office of Information and Regulatory Affairs, and its resource page
- The major executive orders concerning federal regulation and the role of OIRA
- The repository of OIRA return letters
- Cass Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities
- Catherine Sharkey, State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight
- Julius Cohen, Towards Realism in Legisprudence and Legisprudence: Problems and Agenda
- Lon Fuller, The Morality of Law
- Carol Rose, New Models for Local Land Use Decisions
- Cass Sunstein’s memorandum for agency heads, Disclosure and Simplification as Regulatory Tools
- Office of Management and Budget, Circular A-4
- Public comments on the Obama administration’s proposal to revise the basic regulatory executive order (including comments from Martha Nussbaum, Eric Posner, Gillian Metzler, Richard Revesz, Michael Livermore, and Peter Strauss)
- Ethan Leib and David Ponet, Fiduciary Representation and Deliberative Engagement with Children
- Evan Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking
Special Guest: Ethan Leib.
We talk about the Supreme Court with writer and reporter, Dahlia Lithwick. How should one report on the Court, at a time when analysis of opinions is expected within hours or even minutes? What is the role of the Court press: middle men, translators, or something else? And come to think of it, what’s the role of the Supreme Court? Oracles, politicians, teachers? Should judges give speeches like politicians do? Politics, policy, religion, guns. And, of course, speed traps.
This show’s links:
- Dahlia Lithwick’s latest articles on Slate
- Adam Smith, The Theory of Moral Sentiments (pdf) and wikipedia summary
- Slate Plus
- Derek Muller, The Five Law-Related Podcasts You Should Listen To
- Jack Shafer, Serving up the Supreme Court Dough Before It’s Baked
- Tom Goldstein, We’re Getting Wildly Different Assessments (a deep look into what went wrong with the reporting on the Obamacare decision)
- RonNell Andersen Jones, U.S. Supreme Court Justices and Press Access
- Jesse Wegman, (Supreme) Court TV and the Magically Disappearing Protest
- Kenneth Vogel, Defiant Clarence Thomas Fires Back
- Vikram Amar, Why Did Justice Scalia Decline to Participate in the "One Nation Under God" Case?
- Jack Balkin, ”High” Politics and Judicial Decisionmaking
- Justice Scalia’s memo on a recusal motion in Cheney v. United States District Court for the District of Columbia
- Oral Argument Episode 6: Productive Thoughtlessness, in which we previously discussed Dahlia Lithwick
- Pew Research Center, Political Polarization in the American Public
- Eduardo Peñalver, Property as Entrance
- Town of Greece v. Galloway
- Dahlia Lithwick, You Don’t See What I See
- Oral Argument Episode 8: Party All Over the World, for some of our discussion on speed traps
- Waze app
- Artist Aaron Fein
- Statler and Waldorf:
Special Guest: Dahlia Lithwick.
We talk about the relatively simple problem of global climate change with Brigham Daniels. Starting with EPA’s just-proposed regulations, we discuss the very odd way that U.S. law has confronted the problem. Why has it become a partisan issue and how do we overcome that? Are economic signals enough or must ethics change and tribal alliances break down? How might that happen? Darcy and a special canine guest make brief appearances.
This show’s links:
- Brigham Daniels’ faculty profile and writing
- Brigham Daniels, Addressing Global Climate Change in an Age of Political Climate Change
- EPA, Carbon Pollution Standards
- EPA, Carbon Power Plan Proposed Rule, including links to the proposed rule and numerous fact sheets concerning the EPA’s proposed rule for existing power plants
- Vox’s Guide to Obama's New Rules to Cut Carbon Emissions from Power Plants
- Jonathan Cohn, Obama's New Rules for Coal Plants Are a B.F.D. The Ensuing Political Fight May Be Even Bigger
- The United Nations Framework Convention on Climate Change, website and wikipedia
- Explanation of the Kyoto Protocol
- U.S. Global Change Research Program, 2014 National Climate Assessment
- USGCPR, Appendix: Climate Science Supplement
- About the Intergovernmental Panel on Climate Change or IPCC
- IPCC Assessments
- Massachusetts v. EPA, holding (among other things) that EPA has authority under some parts of the Clean Air Act to regulate greenhouse gas emissions
- EPA, Section 111(d) Plans mandated after an endangerment finding
- In re Polar Bear Endangered Species Act Listing, in which the D.C. Circuit upholds U.S. Fish and Wildlife’s listing of the polar bear as “threatened” under the Endangered Species Act
- Justin Gillis and Kenneth Chang, Scientists Warn of Rising Oceans From Polar Melt
- Ezra Klein, How Politics Makes Us Stupid
- Last Week Tonight with John Oliver, Climate Change Debate on YouTube
- Letter from Moynihan to Ehrlichman in the Nixon White House warning that rising carbon dioxide levels were “very clearly” a “problem,” potentially destroying New York and Washington
- Competitive Enterprise Institute, Energy, YouTube video (“They call it pollution. We call it life.”)
- Kevin Drum, Sorry, "Daily Show": Anti-Vax Nuts Come From Both Sides of the Aisle
- Jedediah Purdy, Climate Change Needs the Politics of the Impossible
- Ezra Klein, 7 Reasons America Will Fail on Climate Change
Special Guest: Brigham Daniels.
We start, of course, with speed traps and the suggestion of a radio talk show host that giving speed trap warnings is a religious obligation. Our major topic, though, is the insanity of the textbook market. Christian takes a typically moderate position and argues that all textbooks should be free. Joe takes a typically strident position and argues that it’s more complicated than that. We discuss our respective projects to change the nature and distribution of law school casebooks. Topics include: textbooks as playlists, how their production is like and unlike the production of wikipedia, the traditional model and how much students pay, the weird market for textbooks, Joe’s collaboration with Lydia Loren to become the Radiohead of textbook publishers, and one publisher’s attempt essentially to lease rather than sell textbooks. We close by noting that it’s hot here now (the slight hiss when Joe speaks is the air conditioning) and Christian’s related parenting woes.
This show’s links:
- Atlanta’s News Radio 106.7 FM and, in particular, The Michael Graham Show
- Episode 7: Speed Trap and follow-up on speed-trap law on Episode 8: Party All Over the World
- Christian Turner, This Thing I Made, describing HydraText
- Yochai Benkler, The Wealth of Networks, from which you can download the book or read it in a browser
- The Berkman Center’s H2O Project at Harvard University
- eLangdell, CALI’s casebook project
- Semaphore Press, Joe’s and Lydia Loren’s casebook company
- James Grimmelman, Internet Law: Cases and Materials
- Daniel Nazer, Aspen to Students: Your Property Book is Not Your Property
- Mike Masnick, Publisher 'DRMs' Physical Legal Textbook About 'Property,' Undermines Property And First Sale Concepts
- Josh Blackman, Aspen Casebook Connect Textbooks Must Be Returned At End Of Class, Cannot Be Resold
- Josh Blackman, Aspen Issues Revised “Connected Casebook” – Now You Can Choose To Keep Your Book
- Ian Chant, Law Profs Revolt after Aspen Casebook Tries to Get Around First Sale Doctrine
Shaking off the rust after a two-week break, we’re back to argue about the Supreme Court’s latest entry in the “Let Us Pray” genre. We are joined by law and religion scholar Nathan Chapman and focus on ancient Greece, where by Greece we mean Greece, New York, and by ancient we mean 1999. That’s when the town began to invite local clergy to its monthly Town Board meetings to deliver short prayers. For almost a decade, these prayers were uniformly Christian and almost always explicitly so. Government and prayer: what to do? We disagree.
This show’s links:
- Nathan Chapman’s faculty profile and writing
- Nathan Chapman, Disentangling Conscience and Religion
- This Week in Law, Episode 258, featuring Christina Mulligan and recommending our show
- Oral Argument 18: Oral Argument, with Tom Goldstein
- Town of Greece v. Galloway, Supreme Court, pdf and html
- Town of Greece v. Galloway, Judge Calabresi’s opinion for the Second Circuit
- Allegheny County v. Greater Pittsburgh ACLU, a creche case that uses the “endorsement” test
- Marsh v. Chambers, the principle Supreme Court case on legislative prayer
- Lemon v. Kurtzman, origin of the so-called Lemon test for Establishment Clause challenges
- Lee v. Weisman, prohibiting prayers at public school graduation ceremonies
- McCreary County v. ACLU, finding a predominantly religious purpose in displaying the Ten Commandments in courthouses and holding government must remain neutral between religious and non-religious viewpoints, with O’Connor’s concurrence decisive
- Nelson Tebbe and Micah Schwartzman, The Puzzle of Town of Greece v. Galloway
- Akhil Amar, The Bill of Rights: Creation and Reconstruction
- Marie Griffith, The Establishment Clause: An Interview with Judge Guido Calabresi
- Guido Calabresi, video of lecture, What about the Establishment Clause? (his remarks begin at 8:50)
- The entry gate to New Haven’s Grove Street Cemetery
Special Guest: Nathan Chapman.
We finally get around to talking about oral argument on Oral Argument. And, oh do we do so in style. Supreme Court advocate and SCOTUSblog co-founder Tom Goldstein joins us for a portion of the show to talk about what oral arguments are, whether they are worth their costs, what they accomplish, and more. Joe complains about absurd hypotheticals. Christian is unfamiliar with any other kind. Also, we begin with errata, in which we acknowledge Christian’s abuse of the English language.
This show’s links:
- Tom Goldstein’s profile and law firm
- SCOTUSblog and its About page
- Oral Argument Episode 17: Flesh List, with Kim Krawiec
- Kim’s posts here and here about her appearance and with some follow-up information
- Subsume
- Oyez, a resource for, among other things, audio of Supreme Court oral arguments dating back at least to the 1950s
- The U.S. Supreme Court’s own pages for oral argument transcripts and audio
- Barry Sullivan, Other Minds: The Use and Uses of Oral Argument
- Epstein, Landes, and Posner, Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument
- Wikipedia, collecting sources, on Justice Thomas’ approach to oral argument
- The Oyez page for Loving v. Virginia, which links to the audio of the oral argument in the historic case striking down state bans on interracial marriage
- Ronald Collins, Hypothetically Speaking: Justice Breyer’s Dialectical Propensities
- Joshua Stein, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime
- Oyez page for Kelo v. City of New London
- Oral argument transcript in Alice Corp. v. CLS Bank Int’l, just search for “King Tut” within this document
- Adam Liptak, A Taxonomy of Supreme Court Humor
- Jay Wexler, Laugh Track II - Still Laughin’!
Special Guest: Tom Goldtsein.
Psst, do you want to buy a kidney? How about a human egg, or a baby? We talk about taboo markets and tragic choice with Kim Krawiec. Topics range from egg “donation” to kidney transplants, altruism, reference transactions, military service, sex, and more. How do we allocate scarce goods when enough of us just don’t believe the goods should be traded like loaves of bread? Program note: We failed to ask Kim whether Joe is monstrous on account of his views on speed trap norms. Our apologies to the listeners and to Kim.
This show’s links:
- Kim Krawiec’s faculty profile and writing
- Oral Argument Episode 14: The Astronaut’s Hair, with Lisa Milot
- The Faculty Lounge blog
- Taxing Eggs, a mini-symposium on the Faculty Lounge blog
- Viviana A. Rotman Zelizer, Morals and Markets: The Development of Life Insurance in the United States
- Viviana A. Zelizer, Pricing the Priceless Child
- Viviana A. Zelizer, The Price and Value of Children: The Case of Children’s Insurance
- Kimberly Krawiec, Price and Pretense in the Baby Market
- Kimberly Krawiec, A Woman’s Worth
- Margaret Jane Radin, Contested Commodities
- Richard Posner, The Regulation of the Market in Adoptions
- Kimberly Krawiec, Kamakahi v. ASRM: The Egg Donor Price Fixing Litigation
- Philip Cook and Kimberly Krawiec, A Primer on Kidney Transplantation: Anatomy of the Shortage
- Wikipedia on the National Organ Transplant Act of 1984
- Kieran Healy and Kimberly Krawiec, Custom, Contract, and Kidney Exchange
- Show Me the Money: Making Markets in Forbidden Exchange, an issue of Law and Contemporary Problems
- Kimberly Krawiec, Foreword to Show Me the Money: Making Markets in Forbidden Exchange
- Guido Calabresi and Philip Bobbitt, Tragic Choices
Special Guest: Kimberly Krawiec.
When you think of giant cable companies, do you find yourself wishing they could be bigger? Do you even find yourself thinking of giant cable companies? Whether you do or do not, you might learn something from our discussion with James Speta, who attempts to shows us the middle way on the issues facing broadband internet. Vertical and horizontal integration, bundling, packets, spectrum, and monopoly. We return to the law and policy of the network.
This show’s links:
- Jim Speta’s faculty profile and writing
- James B. Speta, Supervising Managed Services
- Oral Argument Episode 10 with Christina Mulligan, with discussion and links on many of the topics we discuss, including the Comcast-Time Warner merger, net neutrality, Verizon v. FCC, content delivery networks, the Comcast-Netflix deal, pCell technology, and common carrier regulations
- Comcast, Press Release about its FCC filing on its proposed merger with Time Warner
- Edward Wyatt, Internet Choice Will Be Crucial Battlefield in Big Cable Merger
- Edward Wyatt, Senate Panel Expresses Caution on Merger of Cable Giants
- Susan Crawford, Comcast Pretends to Be on Your Side
- Wikipedia on the Telecommunications Act of 1996
- The National Broadband Plan, executive summary
- Susan Crawford, The Looming Cable Monopoly
- Cecilia Kang, Comcast the little guy? There’s competition everywhere, the company argues
- Bae, Beigman, Berry, Honig, Shen, Vohra, and Zhou, Spectrum Markets for Wireless Services
- Reed Hastings, Internet Tolls And The Case For Strong Net Neutrality
- Jon Brodkin, Netflix says it will pay “tolls” to more ISPs, not just Comcast
- Benjamin, Shelnski, Speta, and Weiser, Telecommunications Law and Policy: Third Edition
Special Guest: James Speta.
It’s Reefer Madness week on Oral Argument. We talk with Douglas Berman about marijuana decriminalization and lots more. We discuss blogs and scholarship, LSD, why minds might be changing and how they change on drug use, parental paternalism and state paternalism, what we mean by “good drugs” and “bad drugs,” the productivity of intoxication, why law students take an interest in philosophy and sociology when it comes to drug laws. What levers should we use to minimize the dangers drugs pose, and what levers are available to us? We talk a bit about Portugal, the Netherlands, Sweden, and North Korea. Yes, North Korea. Is part of the right answer to restrict the market to Mom and Pop Pot? How do we do that in a maelstrom of conflicting federal and state laws? This show’s links: Douglas Berman’s faculty profile (http://moritzlaw.osu.edu/faculty/professor/douglas-a-berman/) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=333123) Kimberly Krawiec, Taxing Eggs on Oral Argument (http://www.thefacultylounge.org/2014/03/taxing-eggs-on-oral-argument.html) on The Faculty Lounge (http://www.thefacultylounge.org) blog The best way to listen to Oral Argument: Podcast apps, such as Castro (http://castro.fm), instacast (http://vemedio.com/products/instacast), Downcast (http://www.downcastapp.com), and Pocket Casts (http://www.shiftyjelly.com/pocketcasts) Doug’s world-famous sentencing blog, Sentencing Law and Policy (http://sentencing.typepad.com) Marijuana Law, Policy and Reform (http://lawprofessors.typepad.com/marijuana_law/), Doug Berman’s latest world-famous blog United States v. Marshall (http://scholar.google.com/scholar_case?case=10071397890963140087) (Easterbrook vs. Posner on the interpretation of statutory LSD punishments) Matt Ferner, Lawmaker Predicts Marijuana Will Be Legal Within 5 Years (http://www.huffingtonpost.com/2014/04/02/marijuana-prohibition-ending_n_5065594.html) Seanna Adcox (AP), South Carolina House Allows Cannabis-Derived Oil for Epilepsy (http://www.wltx.com/story/news/2014/04/02/sc-house-allows-cannabis-derived-oil-for-epilepsy/7215945/) Alex Kreit, Controlled Substances: Crime, Regulation, and Policy (http://www.amazon.com/Controlled-Substances-Crime-Regulation-Policy/dp/1594608717) Alex Kreit, Controlled Substances (http://sentencing.typepad.com/sentencing_law_and_policy/2013/06/controlled-substances-4-investigating-victimless-drug-crimes.html) blog posts on Doug’s Sentencing Law and Policy (http://sentencing.typepad.com) (this is the fourth, with earlier posts linked at the bottom of this one) Ben Tool, North Korea Smokes Weed Every Day, Explaining a Lot (http://www.vice.com/read/north-korea-is-stoned-all-the-time-which-explains-a-lot) Josh Harkinson, Brett Bownell, and Julia Lurie, 24 Mind-Blowing Facts About Marijuana Production in America (http://www.motherjones.com/environment/2014/03/marijuana-pot-weed-statistics-climate-change) Josh Harkinson, The Landscape-Scarring, Energy-Sucking, Wildlife-Killing Reality of Pot Farming (http://www.motherjones.com/environment/2014/03/marijuana-weed-pot-farming-environmental-impacts) Wikipedia on Drug Policy of Sweden (http://en.wikipedia.org/wiki/Drug_policy_of_Sweden) The Dutch government’s Toleration policy regarding soft drugs and coffee shops (http://www.government.nl/issues/drugs/toleration-policy-regarding-soft-drugs-and-coffee-shops) Frida Ghitis, Amsterdam for tourists: What's legal? (http://www.cnn.com/2013/07/17/travel/amsterdam-travel-legal-parameters/) Glenn Greenwald, Drug Decriminalization in Portugal (http://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies) Jonathan Hiskes, Tell me again why we mandate parking at bars? (http://grist.org/article/2010-06-24-tell-me-again-why-we-mandate-parking-at-bars/) Erik Ortiz, 8 things to know about buying and smoking pot in Colorado (http://usnews.nbcnews.com/_news/2013/12/30/22111723-8-things-to-know-about-buying-and-smoking-pot-in-colorado) Melissa Schettini Kearney, The Economic Winners and Losers of Legalized Gambling (http://www.brookings.edu/views/papers/200502kearney.pdf) Ashley Southall, Answers Sought for When Marijuana Laws Collide (http://www.nytimes.com/2013/09/11/us/answers-sought-for-when-marijuana-laws-collide.html) Serge F. Kovalesi, U.S. Issues Marijuana Guidelines for Banks (http://www.nytimes.com/2014/02/15/us/us-issues-marijuana-guidelines-for-banks.html) Trevor Curwin, Small Growers or Corporate Cash Crop? (http://www.cnbc.com/id/36179260) Jake Ellison, Washington State Just Shifted Marijuana Market from ‘Big Weed’ to ‘Ma and Pa Weed’ (http://blog.seattlepi.com/marijuana/2014/02/20/washington-state-just-shifted-marijuana-market-from-big-weed-to-ma-and-pa-weed/) Abby Haglage, Meet Mark Kleiman, the Man Who Will Be Washington State’s Pot Czar (http://www.thedailybeast.com/articles/2013/03/21/meet-mark-kleiman-the-man-who-will-be-washington-state-s-pot-czar.html) Gonzales v. Raich (http://scholar.google.com/scholar_case?case=15647611274064109718) Frontline interview with Mark Kleiman (http://www.pbs.org/wgbh/pages/frontline/shows/dope/interviews/kleiman.html) Special Guest: Douglas Berman.
This is the one about eggs. Human eggs. And whether selling them is like selling chicken eggs, teaching law school, or being a good samaritan. Lisa Milot joins us to talk about taxing proceeds from transfers of human body materials. We discuss Christian’s beard, astronaut hair, egg donations, oil reservoirs, how to pronounce Kim Krawiec’s name, speed traps, and follow-up on the US News episode. This show’s links: Episode 12: Heart of Darkness (http://oralargument.org/12), the episode about the U.S. News Law School Rankings The Ranking Game (http://monoborg.law.indiana.edu/lawrank/play.shtml), Jeffrey Stake’s do-it-yourself rankings website Jeffrey Stake and Michael Alexeev, Who Responds to U.S. News & World Report’s Law School Rankings?, forthcoming study of U.S. News rankings’ influence on student, administrators, and employers Lisa Milot’s bio (http://www.law.uga.edu/profile/lisa-milot) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=863590) Lisa Milot, What Are We - Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1480355) Taxing Eggs: A Mini-Symposium (http://www.thefacultylounge.org/2014/02/taxing-eggs-a-mini-symposium.html) on The Faculty Lounge (http://www.thefacultylounge.org/) blog Lisa Milot, Taxing Eggs (http://www.thefacultylounge.org/2014/02/taxing-eggs-lisa-milot.html) Cory Doctorow, Life on the Frozen-Food-Tasting Line (http://boingboing.net/2014/03/28/life-on-the-frozen-food-tastin.html) Smelling armpits (http://www.kuediting.com/ads/how-advertising-turned-armpits-into-vacation-destinations/attachment/smelling-armpits/) Richard Rubin, Egg Donor IRS Challenge Offers Future Sperm Tax Certainty (http://www.bloomberg.com/news/2014-02-20/egg-donor-irs-challenge-offers-future-sperm-tax-certainty.html) About egg retrieval (http://www.thedonorsource.com/egg_ret.htm) from The Donor Source (http://www.thedonorsource.com), an egg donor agency Alissa Fleck, Inside the Industry of Egg Donation (http://www.refinery29.com/2014/03/64124/egg-donation) Kimberly Krawiec, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356012) Kimberly Krawiec, [A Woman’s Worth][krawiec2] [krawiec2]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1548929 Special Guest: Lisa Milot.
Our guest, Dave Hoffman, writes about everything and helped to found one of the premier legal blogs, Concurring Opinions. We talk about the role of legal blogs in the public sphere and for the academy. And speaking of writing, what’s wrong with legal scholarship? What should we be doing, and how can the forms of writing, the fora for writing, and the expectations for scholars help or hinder that? Also, too, the return to the show of speed trap law and whether Joe satisfies the basic norms of civility. This show’s links: David Hoffman’s bio (http://www.law.temple.edu/pages/faculty/n_faculty_hoffman_main.aspx) and writing (http://www.law.temple.edu/pages/Faculty/N_Faculty_Hoffman_publications.aspx) Concurring Opinions (http://www.concurringopinions.com) Prawfsblawg (http://prawfsblawg.blogs.com) Cultural Cognition Project (http://www.culturalcognition.net) Dave Hoffman, The Death of Fact-finding and the Birth of Truth (http://www.concurringopinions.com/archives/2007/04/the_death_of_fa.html) Duncan Black (Atrios) on law profs here (https://twitter.com/Atrios/status/446821134949154816), here (https://twitter.com/Atrios/status/446821301580488704), and here (https://twitter.com/Atrios/status/446822582764204032) Matt Bodie for Prawfsblawg, The “Research Canons” Project (http://prawfsblawg.blogs.com/prawfsblawg/2006/09/announcing_the_.html) David Freeman Engstrom, The 'Twiqbal' Puzzle and Empirical Study of Civil Procedure (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290845) About SSRN (http://en.wikipedia.org/wiki/Social_Science_Research_Network), the Social Science Research Network About B.E. Press (http://en.wikipedia.org/wiki/Berkeley_Electronic_Press), the Berkeley Electronic Press ResearchGate (http://www.researchgate.net/aboutus.AboutUs.html) The Murder of Kitty Genovese (http://en.wikipedia.org/wiki/Murder_of_Kitty_Genovese) The Montana Speed Non-Limit (http://en.wikipedia.org/wiki/Speed_limits_in_the_United_States#Reasonable_and_prudent) Special Guest: David Hoffman.
The U.S. News rankings of law schools are out! We wish they would go away. After follow-up on last week’s episode and a dip into viewer mail, we discuss what problems the rankings might be attempts to solve, how they are calculated, and the obvious problems with them. Joe reports that after the conversation, as after other discussions of the rankings, he felt like he needed a shower. This show’s links: Episode 11: Big Red Diesel (http://oralargument.org/11) Typography in ten minutes (http://practicaltypography.com/typography-in-ten-minutes.html) from Butterick’s Practical Typography (http://practicaltypography.com/index.html), see also his Summary of Key Rules (http://practicaltypography.com/summary-of-key-rules.html) Ben Carter, Typography for Lawyers: One Space, Double Spacing, and Other Good Ideas (http://bluegrassroots.org/home/typography-for-lawyers-one-space-double-spacing-and-other-go.html) The 2015 U.S. News and World Report Law School Rankings (http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/law-rankings) LSAC, Choosing a Law School (http://www.lsac.org/jd/choosing-a-law-school/customize-your-law-school-search) The official U.S. News Rankings Methodology (http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2014/03/10/methodology-2015-best-law-schools-rankings) Brian Leiter, An Open Letter to Bob Morse of U.S. News (http://leiterlawschool.typepad.com/leiter/2010/03/an-open-lette-1.html) Brian Leiter, The U.S. News Law School Rankings: A Guide for the Perplexed (http://www.leiterrankings.com/usnews/guide.shtml) Theodore P. Seto, Understanding the U.S. News Law School Rankings (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=937017), in which Prof. Seto describes an attempt to reproduce the U.S. News model and conclusions about the rankings’ reliability, accuracy, and shortcomings Paul Caron, 2015 U.S. News Peer Reputation Rankings vs. Overall Rankings (http://taxprof.typepad.com/taxprof_blog/2014/03/2015-us-news-.html) Robert L. Jones, A Longitudinal Analysis of the U.S. News. Law School Academic Reputation Scores Between 1998 and 2013 (http://law.fsu.edu/journals/lawreview/backissues/vol40/documents/jones.pdf) Jeffrey Evans Stake, The Interplay Between Law School Rankings, Reputations, and Resource Allocation: Ways Rankings Mislead (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700862) Bill Henderson, Can Stanford Be No. 1 in the U.S. New Rankings? (http://www.elsblog.org/the_empirical_legal_studi/2010/07/can-stanford-be-1-in-the-us-news-rankings-the-data.html)
The Spring Break episode in which Joe and Christian take a break from solving the world’s legal problems to talk about the technology and culture of writing. We start with some listener feedback, and then Joe reports on an accidental experiment he performed with his car lights. Moving on to email, we discuss a number of bad habits, including needless attachments and clicking on links. Then, the big daddy: Microsoft Word. We discuss what Christian thinks is horribly wrong with it and the excellent, usable alternative to the whole concept of the WYSIWYG word processor. We argue. We close with Memphis. Christian's spouse conducts various noisy activities in the background. And Darcy barks. Never fear: we'll get back to the law stuff next week. This show’s links: Episode 1 with Sonja West (http://oralargument.org/1) Charlie Jane Anders, Great Fast Food Glasses of Yesteryear (http://io9.com/5422249/great-fast-food-glasses-of-yesteryear/) Wikipedia on Headlight flashing (http://en.wikipedia.org/wiki/Headlight_flashing) Please don’t send me Microsoft Word document (http://en.nothingisreal.com/wiki/Please_don't_send_me_Microsoft_Word_documents) John Gruber, On Top (http://daringfireball.net/2007/07/on_top) John Gruber, Markdown (http://daringfireball.net/projects/markdown/) David Sparks, The Joy of Text (http://macsparky.com/blog/2011/2/10/the-joy-of-text.html) Paul Jacobson, Could MultiMarkdown Replace Word for Lawyers? (http://pauljacobson.org/2013/03/09/could-multimarkdown-replace-word-for-lawyers/) Markdown for Lawyers (http://www.whiteheadlawllc.com/technology/ediscovery/markdown-lawyers-ii/) Markdown cheatsheet (https://www.penflip.com/Penflip/help/blob/master/Markdown.txt) Brett Terpstra, The iOS Text Editor roundup (http://brettterpstra.com/ios-text-editors/) Scrivener (https://www.literatureandlatte.com/scrivener.php), a writing app for Mac and Windows Case study (http://literatureandlatte.com/casestudies.php?show=david_sparks) on using Scrivener in a legal practice, featuring David Sparks Ulysses (http://www.ulyssesapp.com), a writing app for Mac Byword (http://bywordapp.com), a great text editor for Mac, iPhone, and iPad Editorial (http://omz-software.com/editorial/), Christian’s favorite markdown editor for the iPad Typography in ten minutes (http://practicaltypography.com/typography-in-ten-minutes.html) from Butterick’s Practical Typography (http://practicaltypography.com/index.html), see also his Summary of Key Rules (http://practicaltypography.com/summary-of-key-rules.html) Ben Carter, Typography for Lawyers: One Space, Double Spacing, and Other Good Ideas (http://bluegrassroots.org/home/typography-for-lawyers-one-space-double-spacing-and-other-go.html)
This is the one about the internet, that which is neither truck nor tube. Christina Mulligan joins us to talk about our beloved cable companies, Netflix, network neutrality, regulation, monopolies, common carriers, sunken and ancient computers, and her super-secret new project (which Christian suggests could yield an excellent new conspiracy theory that would make Logan Sawyer cry). Also we answer viewer mail. Because this is a super-sized show (pour a beverage), we also mention bonobos, Schweddy Balls, Candy Crush, Candyland, the odd shape of either my coffee mugs or Joe’s face, whether we should change our name to improve our Google search position, packets spewing from unicorn horns, and the pronunciation of Smaug. Christian announces the sale of his body parts. This show’s links: Christina Mulligan’s faculty profile (http://www.law.uga.edu/profile/christina-mulligan), writings (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1557395), and Twitter (https://twitter.com/chrystyna) The Kythera Mechanism (http://en.wikipedia.org/wiki/Antikythera_mechanism) Kaiju (http://pacificrim.wikia.com/wiki/Kaiju) Bonobos (http://en.wikipedia.org/wiki/Bonobo) Owen Jones bio (http://law.vanderbilt.edu/bio/owen-jones) and writing (http://ssrn.com/abstract=688619) Candy Crush cease and desist letters (http://www.escapistmagazine.com/forums/read/7.839964-Candy-Crush-Saga-Studio-Trademarks-the-Word-Candy) and recent trademark withdrawal (http://www.kotaku.com.au/2014/02/candy-crush-makers-dont-want-to-trademark-candy-anymore/) Gramma Nutt (http://candy-land.wikia.com/wiki/Gramma_Nut), of Candyland fame Background on net neutrality (http://en.wikipedia.org/wiki/Net_neutrality), which has nothing to do, we are told, with this kind of neutrality (http://en.wikipedia.org/wiki/Alignment_(Dungeons_%26_Dragons)) Verizon v. FCC (http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf), the DC Circuit’s net neutrality case Content delivery networks (http://en.wikipedia.org/wiki/Content_delivery_network) Joshua Brustein, Netflix and YouTube Dominate Online Video. Can Amazon Catch Up? (http://www.businessweek.com/articles/2013-11-11/netflix-and-youtube-dominate-online-video-dot-can-amazon-catch-up) (Businessweek.com) Timothy Lee, Comcast’s deal with Netflix makes network neutrality obsolete (http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/23/comcasts-deal-with-netflix-makes-network-neutrality-obsolete/) (Washington Post) Traffic shaping (http://en.wikipedia.org/wiki/Traffic_shaping) Common carrier regulations (http://www.law.cornell.edu/uscode/text/47/chapter-5/subchapter-II/part-I) Jon Brodkin, Make ISPs into "common carriers," says former FCC commissioner (http://arstechnica.com/tech-policy/2014/01/drop-regulatory-hammer-on-internet-providers-says-former-fcc-commish/) (arstechnica.com) Wikipedia on natural monopoly (http://en.wikipedia.org/wiki/Natural_monopoly) Steve Perlman’s pCell (http://www.wired.com/business/2014/02/steve_perlman_pcell/) (also see this presentation (http://www.youtube.com/watch?v=5bO0tjAdOIw)) John McDuling, People hate Comcast and Time Warner Cable even more now that they’re merging (http://qz.com/182784/people-hate-comcast-and-time-warner-cable-even-more-now-that-theyre-merging/) (Quartz) About BitTorrent (http://en.wikipedia.org/wiki/BitTorrent) Uber’s surge pricing (http://www.theverge.com/2013/12/18/5221428/uber-surge-pricing-vs-price-gouging-law) Athens’ drought-inspired tiered water rates (http://onlineathens.com/stories/031608/news_2008031600379.shtml) and the general idea (http://www1.gadnr.org/cws/Documents/Conservation_Rate_Structures.pdf) Yves Smith, The Myth of Maximizing Shareholder Value (http://www.nakedcapitalism.com/2014/01/myth-maximizing-shareholder-value.html) Jonathan Owen, The Pronunciation of Smaug (http://www.arrantpedantry.com/2013/12/20/the-pronunciation-of-smaug/) The Death Star conspiracy (http://www.youtube.com/watch?v=cEPazLTGceI) Special Guest: Christina Mulligan.
Law and banking in one podcast. Take deep breaths lest your racing heart burst in your chest. You think I'm joking. Probably because you don't know Mehrsa Baradaran. But then, you probably do, because everyone does. We talk about, among other things, how one should say “Mehrsa,” what banking is, It’s a Wonderful Life, how banks are subsidized and regulated, how 40 percent of the country doesn’t really bank or at least “underbanks,” and payday lenders. Christian does not call Joe “Adam Smith.” Mehrsa defends banking at the post office (dubbed by one banking industry exec “the worst idea since the Ford Edsel”). From the bank bailouts to moral hazard to the the precarious financial position of the working poor, we cover a lot of ground. And, naturally, speed traps. (Update 11/24/2018: Christian here. A listener got in touch with some very thoughtful criticism of our discussion during the intro. Talking about a gendered list, I casually raised switching genders to get on this list, in a way that the listener perceived as making a joke of transgender people. It pains me that this discussion would hurt anyone. I’m very sorry. Although it has been a long time since this conversation, I know my intent was to poke a little fun at the gendered nature of the list, though I winced at my ham-fisted mention of reassignment surgery. I hope it’s a sign of progress that I don’t believe the conversation would be the same today as it was then. But we feel strongly that retroactively editing the show should be reserved for truly exceptional situations, not to save face.) This show’s links: Mehrsa Baradaran's faculty profile (http://www.law.uga.edu/profile/mehrsa-baradaran) and writings (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1178148) The 100 Coolest Mormon Women Alive Today (http://utahvalley360.com/2014/01/23/100-coolest-lds-women-alive-today/2014/01/23/100-coolest-lds-women-alive-today/) Mehrsa Baradaran, The Post Office Banks on the Poor (http://www.nytimes.com/2014/02/08/opinion/the-post-office-banks-on-the-poor.html) (New York Times Op-Ed) Mehrsa Baradaran, Banking and the Social Contract (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2227060) The bank run (http://www.youtube.com/watch?v=EOzMdEwYmDU) in It’s a Wonderful Life About the FDIC (http://en.wikipedia.org/wiki/Federal_Deposit_Insurance_Corporation) Angelo Young, It’s Bankers vs. Wal-Mart in Push to Force Financial Regulation upon the World’s Largest Retailer (http://www.ibtimes.com/its-bankers-vs-wal-mart-wmt-push-force-financial-regulation-upon-worlds-largest-retailer-1248361) Jefferson and Madison’s opposition to centralized banking (http://en.wikipedia.org/wiki/First_Bank_of_the_United_States#Opposition) Louis Brandeis, Other People’s Money (http://www.law.louisville.edu/library/collections/brandeis/node/191) Andrew G Haldane, The Dog and the Frisbee (http://www.bis.org/review/r120905a.pdf) Mehrsa Baradaran, It's Time for Postal Banking (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2393621) Stephen Wexler, Practicing Law for Poor People (http://www.jstor.org/stable/795211) Oral Argument Episode 8: Party All Over the World (http://oralargument.org/8) [City of Warrensville Heights v. Wason][wason] [wason]: http://scholar.google.com/scholar_case?case=469408788857827534 Special Guest: Mehrsa Baradaran.
Fresh off a week-long, snow and ice shutdown, Joe tells Christian he doesn’t want to be called Adam Smith anymore. We discuss viewer mail. Then we circle back to the emerging show specialty: whether you can be charged for warning drivers of a speed trap. Turns out it’s a debate that sprawls over more than a hundred years. We also talk about leveling up one’s understanding of law, from bare opinions about disputes to theories of institutional assignment. Roll for initiative: it’s time for Oral Argument. This show’s links: Electric Light Orchestra, Party All Over the World (http://www.youtube.com/watch?v=vCduAMGXIzk) Robbie Robertson’s mash-up masterpiece: On the nature of daylight / This Bitter Earth (http://www.youtube.com/watch?v=CW-GMG6xhtY) Email us at oralargumentpodcast@gmail.com (mailto:oralargumentpodcast@gmail.com) Oral Argument Episode 7: Speed Trap (http://oralargument.org/7) United States v. O’Brien (http://scholar.google.com/scholar_case?case=12229836877065678192) DiPino v. Davis (http://scholar.google.com/scholar_case?case=11064487617583107024) Wikipedia on Liebeck v. McDonald’s (http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants) (the hot coffee case) INS v. AP (http://scholar.google.com/scholar_case?case=16577297531712180725)
Joe calls in from an undisclosed location(Santa Clara, CA) for a short show. We begin by discussing listener Alan’s demand for more conflict, an Idaho listener’s request for more Darcy, and listener Amy’s request to discuss her parking ticket. The conversation turns to a federal court’s preliminary injunction in favor of a man who was charged for warning drivers of a speed trap by flashing his lights. This show’s links: Parking Is Hell: A New Freakonomics Radio Podcast (http://freakonomics.com/2013/03/13/parking-is-hell-a-new-freakonomics-radio-podcast/) Jury Nullification (http://en.wikipedia.org/wiki/Jury_nullification) Civil Disobedience (http://en.wikipedia.org/wiki/Civil_disobedience) Recipe: Cold-Brewed Iced Coffee (http://www.nytimes.com/2007/06/27/dining/276drex.html) Elli v. City of Ellisville (http://online.wsj.com/public/resources/documents/michaelelli2.pdf) The National Speed Trap Exchange (http://www.speedtrap.org) Wikipedia on Headlight Flashing (http://en.wikipedia.org/wiki/Headlight_flashing) What is a classic authentic mexican burrito filled with? (http://chowhound.chow.com/topics/886167) (Chowhound)
Joe, Christian, loyal dog Darcy, a fire, some coffee, and melting snow. We kick back and talk about stuff that has been on our minds. This leads to three very different topics. First: we disagree whether the Supreme Court should strike down the President’s recess appointment to the National Labor Relations Board. Text vs. history vs. practice. Second: The Atlanta snowstorm traffic fiasco, in which we discuss mountaineering and computer programming. Third: What makes Dahlia Lithwick so great? Darcy makes a few appearances. This show’s links: Cornell’s Legal Information Institute (http://www.law.cornell.edu) SCOTUSblog page (http://www.scotusblog.com/case-files/cases/national-labor-relations-board-v-noel-canning/) for NLRB v. Noel Canning Jay Bookman, Really, by now metro Atlanta ought to know better (http://www.ajc.com/weblogs/jay-bookman/2014/jan/30/really-now-metro-atlanta-ought-know-better/) Object-oriented programming (http://en.wikipedia.org/wiki/Object-oriented_programming) Matthew Yglesias, Atlanta Is a Regional Transportation Planning Disaster (http://www.slate.com/blogs/moneybox/2014/01/29/atlanta_traffic_nightmare_terrible_regional_planning.html) Tracy Thompson, What Does Racism Have to Do With Gridlock? (http://www.slate.com/articles/news_and_politics/politics/2014/01/atlanta_s_snow_fiasco_the_real_problem_in_the_south_isn_t_weather_it_s_history.html) Dahlia Lithwick, Bright Lights, Fake Kiddies (http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2001/10/bright_lights_fake_kiddies.html)
Logan Sawyer, certified historian and lawyer, joins us to talk about what historians do and how they differ from the crazy uncle who fancies himself a history buff on Twitter. We learn why history is radical, not conservative, whatever political movement it is employed to serve. We discuss the methods of history and science and their abuses. Logan tells us that history is often at war with theory and that historians prey on other fields. He unravels the received wisdom of the New Deal switch in time and the conventional story of Lochner v. New York. As if to make a case in point, we keep distracting him with theory. This show’s links: Logan Sawyer's faculty profile (http://www.law.uga.edu/profile/logan-e-sawyer-iii) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=547659) Logan Sawyer, Creating Hammer v. Dagenhart (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033351) Oral Argument Episode 2: Bust a Deal, Face the Wheel (http://oralargument.org/2) (in which we learned Tim Meyer’s coffee habits) The court-packing plan (http://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine) Legal realism (http://en.wikipedia.org/wiki/Legal_realism) Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (http://www.amazon.com/Rethinking-New-Deal-Court-Constitutional/dp/0195120434) Lochner v. New York (http://scholar.google.com/scholar_case?case=10760991087928264675) Charles Warren, A Bulwark to the State Police Power — the United States Supreme Court (http://www.jstor.org/stable/1110654) David Bernstein, [Rehabilitating Lochner][Bernstein] Oral Argument Episode 4: Grow a Pear (guest Sarah Schindler) (http://oralargument.org/4) Village of Euclid v. Ambler Realty Co. (http://scholar.google.com/scholar_case?case=8376015914752485063) [Bernstein]: http://www.amazon.com/Rehabilitating-Lochner-Defending-Individual-Progressive/dp/0226043533 Special Guest: Logan Sawyer.
From far northern climes, we are joined by Sarah Schindler, land use and property expert, hipster scholar, and lawn destroyer. In this episode we discuss Maine, backyard chicken raising, zoning, Brasília, the virtues and pleasures of law-breaking, and banning lawns. Sponsored this week by the Monsanto Corporation. Not really. This show’s links: Sarah Schindler’s faculty profile (http://mainelaw.maine.edu/faculty/profiles/schindler.html) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1099143) Errata! Jukkasjärvi and its ice hotel (http://en.wikipedia.org/wiki/Jukkasjärvi) are in Sweden, not Finland. Apologies to our Swedish listeners. Aaron Perzanowski, Tattoos and IP Norms (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145048) David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1755305) Hella Blitzgerald (http://classiccityrollergirls.com/about/skaters/hella-blitzgerald) Sarah Schindler, Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2030526) backyardchickens.com (http://www.backyardchickens.com); City of Longmont Backyward Chicken Hen Permit (http://www.ci.longmont.co.us/planning/permits/documents/henpermit.pdf) Some articles on local food and energy: USDA Economic Research Service, Energy Use in the U.S. Food System (http://www.ers.usda.gov/publications/err-economic-research-report/err94.aspx#.UtnMXHn0C2w); Stephen Budiansky, Math Lessons for Locavores (http://www.nytimes.com/2010/08/20/opinion/20budiansky.html); Wikipedia on Local Food (http://en.wikipedia.org/wiki/Local_food) Village of Euclid v. Ambler Realty Co. (http://scholar.google.com/scholar_case?case=8376015914752485063) Brasília (http://en.wikipedia.org/wiki/Brasilia) US PIRG, Transportation and the New Generation (http://www.uspirg.org/sites/pirg/files/reports/Transportation%20%26%20the%20New%20Generation%20vUS_0.pdf) Nicole Stelle Garnett, Redeeming Transect Zoning? (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2188084) Tiebout Model (http://en.wikipedia.org/wiki/Tiebout_model) Paula Franzese, Privatization and its Discontents: Common Interest Communities and the Rise of Government for the Nice (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=871289) St. Augustine Confessions, Book 2, Chapter 6 (http://www.ourladyswarriors.org/saints/augcon2.htm#chap6) (“I stole those simply that I might steal, for, having stolen them, I threw them away. My sole gratification in them was my own sin, which I was pleased to enjoy; for, if any one of these pears entered my mouth, the only good flavor it had was my sin in eating it.”) Scott James on illegal pop-Up restaurants (https://www.baycitizen.org/columns/scott-james/underground-dining-illegal-tasty/) Eduardo M. Peñalver and Sonia Katyal, Property Outlaws (http://www.amazon.com/Property-Outlaws-Squatters-Protesters-Ownership/dp/0300122950) Adverse Possession (http://en.wikipedia.org/wiki/Adverse_possession): trespassing until it’s yours Guerrilla bike lanes in Cleveland (http://www.cleveland.com/architecture/index.ssf/2013/08/guerrilla_stripers_add_bike_la.html), New York (http://untappedcities.com/2013/09/25/guerrilla-bike-lanes-appear-nyc-cycling-advocacy-group-right-of-way-6th-avenue/), New York again (http://cityroom.blogs.nytimes.com/2013/09/22/unauthorized-bike-lanes-created-in-midtown/), and Seattle (http://www.seattlebikeblog.com/2013/04/04/guerrilla-road-safety-group-politely-installs-illegal-bike-lane-protectors-on-cherry-street/), and everywhere (http://www.bicycling.com/news/advocacy/paint-your-lane) Sarah Schindler, Banning Lawns (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2279544) Special Guest: Sarah Schindler.
Should we just get rid of intellectual property law altogether? IP scholar Paul Heald, joining us from his home in Illinois, doesn’t think so. But what should we do about patent trolls? Is it even feasible to create virtual fences around ideas? Paul suggests that patent should work a bit more like copyright (which we all think is broken) and should be used to encourage exchange. The conversation ranges from trade secrets, to programmers, to the invention of the airplane. Turning to the runaway train that is copyright law, Paul tells us his spouse was a plaintiff in the disastrously decided Eldred v. Ashcroft. We talk about Paul’s studies of bad audiobooks, the public domain, the copyrighting of the bible, and a long-forgotten playwright named Shakespeare. Could the public domain, if copyright were sensibly limited, compete substantially with new works? Christian says “more and more” a lot. Paul previews his new study, which involves adult films. This show’s links: Paul Heald’s faculty profile (http://www.law.illinois.edu/faculty/profile/paulheald) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=227781) Paul Heald, A Transaction Cost Theory of Patent Law (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=385841) This American Life, When Patents Attack, Part 1 (http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack) and Part 2 (http://www.thisamericanlife.org/radio-archives/episode/496/when-patents-attack-part-two) Ronald J. Mann, Do Patents Facilitate Financing in the Software Industry (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1507543) Paul Heald, Optimal Remedies for Patent Infringement (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1278062) Lawrence Solum, Legal Theory Lexicon: Property Rules and Liability Rules (http://lsolum.typepad.com/legaltheory/2008/11/legal-theory--7.html) StackExchange (http://stackexchange.com) Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155167) Charlotte Hess and Elinor Ostrom, _Understanding Knowledge as a Commons — From Theory to Practice. Cambridge: Massachusetts Institute of Technology. Introduction (http://mitpress.mit.edu/sites/default/files/titles/content/9780262083577_sch_0001.pdf) The Wright brothers patent war (http://en.wikipedia.org/wiki/Wright_brothers_patent_war) Eldred v. Ashcroft (http://scholar.google.com/scholar_case?case=12147684852241107557) Lawrence Lessig, How I Lost the Big One (http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp) Paul Heald, How Copyright Makes Books and Music Disappear (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290181) Paul Heald, The Public Domain (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2362983) Rufus Pollock, Forever Minus a Day? Calculating Optimal Copyright Term (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436186) Michael W. Carroll, One Size Does Not Fit All: A Framework for Tailoring Intellectual Property Rights (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1585464) Special Guest: Paul Heald.
Three episodes means we’ve got a show. This week we talk with coffee guzzler and international law expert Tim Meyer. We start with odd coffee habits. Then we ask what international law is. Is it even law? What is law? From there we cover commands and threats, the WTO, the modern framework of international law, and the difference between hard law and soft law. Tim proposes ditching a dinner with Joe. Did you know the London Group doesn’t meet in London? And why would anyone make an agreement they couldn’t hold you to? This show’s links: Tim Meyer’s faculty profile (http://www.law.uga.edu/profile/timothy-l-meyer) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=440142) The World Trade Organization (http://en.wikipedia.org/wiki/World_Trade_Organization) John Austin (http://en.wikipedia.org/wiki/John_Austin_(legal_philosopher)) (and the command theory) Youngstown Sheet and Tube v. Sawyer (http://scholar.google.com/scholar_case?case=14460863599772421355) Cooter, Marks, and Mnoonkin, Bargaining in the Shadow of the Law (http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1084&context=facpubs), 11 J. L. Stud. 225 (1982) The Vienna Convention on the Law of Treaties (http://www.worldtradelaw.net/misc/viennaconvention.pdf) Wikipedia page on the UN Convention on Climate Change (http://en.wikipedia.org/wiki/United_Nations_Framework_Convention_on_Climate_Change) (includes a link to the text) The Kyoto Protocol (http://unfccc.int/resource/docs/convkp/kpeng.pdf) Andrew T. Guzman and Timothy Meyer, International Soft Law (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353444), 2 Journal of Legal Analysis (2011) Master Blaster runs Bartertown (http://www.youtube.com/watch?v=_Xetonjc3M8) (youtube) and Bust a Deal and Face the Wheel (http://www.hark.com/clips/csnjfrxldc-bust-a-deal-and-face-the-wheel) (sound clip) Jean d’Aspremont, Formalism and the Sources of International Law (http://books.google.com/books?id=cnAnAgAAQBAJ), Oxford Univ. Press (2011) The London Club (http://en.wikipedia.org/wiki/Nuclear_Suppliers_Group) Goldilocks Globalism (Guzman and Meyer, 2015) Tim’s book suggestions: Robert Keohane, After Hegemony (http://www.amazon.com/After-Hegemony-Cooperation-Political-Princeton/dp/0691122482); Lloyd Gruber, Ruling the World (http://www.amazon.com/Ruling-World-Lloyd-Gruber/dp/0691010412/); Pollack and Shaffer, When Cooperation Fails (http://www.amazon.com/When-Cooperation-Fails-International-Genetically/dp/0199567050); Andrew Guzman, How International Law Works (http://www.amazon.com/How-International-Law-Works-Rational/dp/0195305566); Posner and Sykes, Economic Foundations of International Law (http://www.amazon.com/Economic-Foundations-International-Eric-Posner/dp/0674066995) Special Guest: Tim Meyer.
The real first episode of Oral Argument doesn’t hold back. Prof. Sonja West joins us to talk about the the press, the First Amendment, and other cool things. We discuss Supreme Court justices’ getting to talk about whatever they want, the Press Clause, the religion clauses (and even the quartering clause), Judith Miller and the Iraq War, peyote, bathrobed bloggers, the Twitter, who the press might be, Sonja’s press test, press access to prisons, why Joe should got to prison, religious and secular orthodoxy, bong hits for Jesus, student newspapers and local versions of the controversies over the Washington football team, and Christian’s “profoundly stupid” proposal. This show’s links: Sonja West’s faculty profile (http://www.law.uga.edu/profile/sonja-r-west), writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=518870), and Twitter stream (https://twitter.com/sonjarwest/) Sonja West, Press Exceptionalism (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228813), 127 Harv. L. Rev (forthcoming 2014) Justice John Paul Stevens, Originalism and History (http://www.supremecourt.gov/publicinfo/speeches/JPS%20Speech(Georgia)_11-06-2013.pdf), text of address at University of Georgia, Nov. 6, 2013 New York Times v. Sullivan (http://scholar.google.com/scholar_case?case=10183527771703896207) Branzburg v. Hayes (http://scholar.google.com/scholar_case?case=11598860258825518787) (the Supreme Court on the reporters’ privilege) In re: Grand Jury Subpoena, Judith Miller (http://scholar.google.com/scholar_case?case=6530900504914793267) Employment Division v. Smith (http://scholar.google.com/scholar_case?case=10098593029363815472) (the peyote case) Houchins v. KQED (http://scholar.google.com/scholar_case?case=17191976500273269128) (the Supreme Court on press access to prisons) Neshaminy student newspaper to resume ‘redskin’ ban (http://articles.philly.com/2013-12-25/news/45541924_1_playwickian-student-editors-student-newspaper), Philly.com Hazelwood School District v. Kuhlmeier (http://scholar.google.com/scholar_case?case=2391207692241045857) Morse v. Frederick (http://scholar.google.com/scholar_case?case=10117776825257150184) (the BONG HiTS 4 JESUS case) Special Guest: Sonja West.
This is not the first episode, but it is the launch of Oral Argument, a weeklyish show on which Joe and I talk to people about legal practice, theory, and education and also about random things that interest us. No guests in this test episode we recorded. But we do chat about nonsense, Duck Dynasty, and bad questions abour heroism. We recorded an additional segment on law school exams, but that will have to await the director's cut version of episode 0, due out never. Relevant links: Phil Magary, Duck Dynasty's Phil Robertson Gives Drew Magary a Tour (http://www.gq.com/entertainment/television/201401/duck-dynasty-phil-robertson), GQ. Hillbilly Handfishin' (http://en.wikipedia.org/wiki/Hillbilly_Handfishin') Christian Turner, State Action and Duck Dynasty (http://www.hydratext.com/blog/2013/12/20/muzzling-the-duck-dynasty), HydraText Christian Turner, State Action Problems (http://www.hydratext.com/blog/2012/3/22/state-action-problems.html), HydraText Shelley v. Kraemer (http://scholar.google.com/scholar_case?case=12732018998507979172) Buchanan v. Warley (http://scholar.google.com/scholar_case?case=17109776118808449915) Shutter Island (http://en.wikipedia.org/wiki/Shutter_Island_(film))